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In Which I Agree With David Frum and Noah Millman

Ordinarily, I could carry no brief for David Frum, a savvy actor in movement politics who made himself the Grand Inquisitor against the paleoconservatives and other dissenters opposed to the Iraq War - and all of the victims of his purge have been vindicated by the tides of history - and lately an advocate of a reformed, moderate conservatism. I can espouse neither his foreign policy prescriptions, demonstrably disastrous as they have been, and cannot but be, nor his prescriptions for domestic reform, to the extent that they are contingent upon throwing the social conservatives to the wayside. However, in the matter of in re: Sunstein, I am compelled to side with Frum, and Millman, not so much because I embrace Sunstein's controversial policy proposal without reservations, but because I find the critiques of it at once muddled and overwrought, and the rhetoric deployed in defense of those attacking Sunstein histrionic and philosophically dishonest.

Hewing solely to those excerpts quoted by Lydia below, I am compelled to make inquiry:

- How is it that Sarah Palin, Rush Limbaugh, and Glenn Beck have become "the most powerful and feared and charismatic conservatives"? Would this be the Sarah Palin who at once argues that a lack of regulation was, and was not, the cause of the financial crisis, and who retails the bizarre idea that, if Federal Reserve policy was at the root of the bubble, the banksters are somehow exculpated by this fact (The Fed, and Congress, are uniquely responsible for creating the conditions in which bankers behaved badly, which is to say that they simply couldn't help themselves)? Would this be the Rush Limbaugh who stated that a school-bus beatdown meted out in suburban St. Louis transpired because, in Obama's America, blacks feel empowered to act on the belief that whites are born racists, when the incident related to the strange status hierarchies reflected in seating arrangements? Would this be the Glenn Beck who argues, in perfect innocence, that American government has been captured by a government-corporate oligarchy, but that it would be doubleplusungood progressivism to do anything effective to counter it?

Is it now forbidden to critique the failures and missteps of movement luminaries, merely because The Cause now seems so exigent, even when one has legitimate concerns that the flaws of the movement and its leading figures will prove deleterious to the movement in the medium-term and beyond, or have already proven so?

- Neo-Stalinism? Neo-Stalinism? I must have missed the terror famines, show trials, purges, mass executions, gulags, the climate of suspicion and surveillance in which children turned their parents over to torturers for petty party perks, the bloody repression of religion, and the command economy operated by intellectual incompetents after the liquidation of the Tsarist intelligentsia. My wife grew up in the Soviet Union, in the days of Perestroika and Glasnost, which nonetheless remained orders of magnitude more oppressive than anything contemplated in current policy, and yet failed to descend to the sheer depths of Stalinism in repression and barbarity. Perhaps the prefix 'neo' is intended to differentiate this contemporary Stalinism from the genuine, historical article, in which case it appears to mean nothing more precise, or menacing, than 'any policy proposed by someone to my left with which I happen to disagree' - which would render it the rightist analogue of the tiresome leftist accusation of 'fascism', which, alas, some segments of the right have lately attempted to resuscitate for their own purposes.

If conservatives were forbidden to employ private definitions of key terms in political thought, such as 'socialism', or 'Stalinism', and were thus compelled to deliberate over the merits and demerits of specific policies, articulating specific reasons pro and contra, we would be entertaining, in effect, a debate over the extent to which the United States, in a few areas such as banking regulation and health care, should become more like Germany or Switzerland, respectively. That is, we would be debating specific instances of the generic question of American Exceptionalism, endeavouring to determine whether, and to what extent, the unique characteristics of America exempt it from the general structural tendencies of Western modernity, in politics, economics, and so forth. That might be a disputation worth entertaining, and for a protracted engagement; but we will prove ourselves incapable of entertaining it openly and honestly so long as we veil this fundamental question beneath layers of mystifying incantations.

But the issue with Sunstein concerns the implications of his legal proposal for the enforcement of the interests of animals, you say? Very well, let us turn to that matter.

If I understand correctly, Sunstein was arguing that there’s an asymmetry between laws that protect animals and laws that protect people. If I am negligent in my use of a chain saw, and cut off your arm, you can sue me for damages. If I use my chain saw to cut off the legs of local stray dogs, I’ve broken the law and can be arrested, tried and, if convicted, sent to prison – but nobody has standing to sue me, because the only damage that’s been done is to the dogs, and dogs don’t have standing. (If they weren’t strays, the owners would have standing.) Sunstein was arguing that this asymmetry makes enforcement of laws against animal cruelty relatively weak; normally, the civil law acts (among other things) to buttress the criminal law because in the civil law you’ve “privatized” the investigation and prosecution of the harm. Giving ordinary citizens the standing to sue on behalf of animals would, similarly, privatize the investigation and prosecution of harm to animals; instead of being hapless wards of the state, animals legitimate interests could be protected by any vigilant citizen.

What’s wrong with that? Nothing – if you think laws against animal cruelty should be zealously enforced. Sunstein wasn’t arguing that animals should have any interests or “rights” that aren’t already established legislatively; his whole argument is about how to get protection of such interests or “rights” enforced. It seems to me that if one wants to argue against this, one has to argue either:

It should be observed at the outset that Millman has omitted an argument (f), which would hold that, irrespective of the interests of animals and the obligations of human towards them, enforcing those interests in this manner would set us at the beginning of a slippery slope, the bottom of which would witness a functional legal equivalence between animals and human beings, with the consequence that, as in any case involving the like treatment of disparate things, injustice would be wrought against the human beings. More on this anon. Nonetheless, what should be manifest is that, weak though Frum's circumstantial arguments unquestionably are, it is possible, if one lays aside the hysterics, and resolves to understand an opponent's argument as he himself would understand it, which is to say, charitably, and then presents it rationally, Sunstein's argument is not the transparent lunacy that the critics have portrayed it as being. This is not to state that it is impeccable in its logic, nor that its implementation would be as seamless and unproblematic as Sunstein appears to believe, nor yet that there may not be consequences, foreseeable and unforeseen alike, that ought to give us pause. However, if one believes that animals are more than mere meat machines, biological automata possessing no inherent dignity, no natures, which is to say, no teleologies of their own, save as they come into relation with human beings, then the question of how to ensure that these natures are respected inevitably arises. It is a subset of the broader question of the relationship of man to nature, to the rest of the created order, and how that relationship should be reflected in law and culture.

It is a waste of intellectual energy to consider Millman's option (a) as a valid reason for objecting to Sunstein's proposal; any person seriously maintaining that animal cruelty is either morally illicit or conceptually incoherent is engaged in the performative inconsistency of demanding that the teleologies and goods of human nature be respected and enforced at law - for surely he would not want his 'rights' violated - while claiming a right to regard the remainder of nature, animals included, as so much raw matter fit only for the imposition of human volition. Neither theologically nor philosophically can human nature be so thoroughly severed from its material constituents, isolated from the created world, and elevated above it as pure will. Either one believes in teleologies and natures, or one does not; one is not entitled to pick and choose for reasons of convenience.

Millman's option (b) is more interesting, in that it would essentially posit a lesser-of-two-evils scenario as obtaining as regards the abuse of animals. That, of course, begs the question of the definition of the abuses; and, indeed, if we confine our conception of animal abuse to things customarily regarded as such by the average American, we will probably end up thinking of Michael Vick's dogs - and it cannot seriously be maintained that American prosperity and order are in any way contingent upon such things. However, as Millman hints later on in his post, when he writes, "In the end, what’s unsettling is that anybody who’s done any reading on the subject knows that modern agribusiness results in really unconscionable enormities", there are unquestionably those who do, in point of fact, argue precisely that the American way of life is contingent, in certain respects, upon industrial scale cruelties inflicted upon animals. Without intending to relitigate this question at this time, it suffices to observe that whether Millman's option (b) is a compelling objection to Sunstein depends upon how one defines cruelty, specifically, whether one admits the cruelty of industrial livestock operations, and regards these operations as critical to the American way of life.

Option (c) would seem to be an absurd objection, prima facie, inasmuch as what animal cruelty statutes we do have on the books are so toothless that they impinge not a whit on the industrial scale cruelties of the food production system. Moreover, I can scarcely imagine anyone arguing that our laws, under which dogfighting and drowning kittens in a bag would be criminal acts, are overly broad, and that such acts are either morally neutral or morally licit, and should be permitted. They are obvious cruelties and deprave the minds of those who participate in and/or lend their approval to them - they are prohibited for good, sound reasons.

Option (d) is manifestly a more substantive objection, and allows us to perceive the oversight in Sunstein's reasoning. Sunstein's proposals would likely require enabling legislation, even if they would not necessitate any additional statutes clarifying the legal definition of cruelty; if Sunstein is less than explicit about this point, so much the worse for his consistency. Nevertheless, we already have standards of cruelty which apply in the most common cases of animal abuse; those standards are well-established and sufficiently clear to all parties; if it is a matter of someone being granted standing to sue on behalf of some abused dogs, then the suit would proceed in accordance with existing precedent on the matter. All this would accomplish is enabling third parties to rat out, and bring suit against, some bush-league Michael Vicks. The concern here is not, then, that lawsuits brought on behalf of abused dogs would result in the legal precedents on animal cruelty spiraling out of control, but that lawsuits reasoning by analogy to other fields of endeavour, such as research, or industrial animal "husbandry" would first clutter the courts, and eventually shift the precedents so that they cover all manner of activities that many people would like to perpetuate. And in that instance, the remedy would be positive legislation defining the obligations of human beings towards animals in those circumstances, thus circumscribing the bounds of permissible lawsuits. Hopefully, any such legal remedies would be accompanied by arguments explaining why things which, if done to a dog, would be criminal, would not be criminal if done to a cow. The flaw in Sunstein's reasoning is simply that he overlooks, for whatever reason, the role of the positive law in giving form to our convictions regarding the treatment of animals; at its core, his proposal is for a revision to the formal enforcement mechanisms employed in animal abuse cases, where the formal mechanism must presuppose some or other conception of the interests to be defended. Perhaps Sunstein should be more forthright if he believes that standards of animal cruelty already having legal force should be extended to cover livestock; in that case, his critics should be more forthright in explaining why such reasoning by analogy is so gravely mistaken.

Objection (e) is plausible, but like Millman, I don't imagine that the juridical disruptions would be enduring; the remedy for any legal system thus cluttered by junk suits would be identical to the remedy for (d), namely, determinations by the positive law that cruelty does, or does not, encompass specific things, thus defining the field of cruelty, and allowing all parties to adjust to the new reality.

Finally, as for objection (f), as with the two previous objections, the outcome is contingent upon the substantive conception of animal interests recognized at law; if the formal mechanisms, including 'standing to sue', operate within the constraints of a legal order in which, by whatever means, the rights of persons and the enforceable interests of animals are distinguished, then no slippery slopes will materialize. If those formal mechanisms operate within a legal order in which those matters are left ambiguous, then the slippery slope is possible; but the bare formality of 'standing to sue' does not, of itself, yield the slippery slope; it can so only in combination with both compliant courts and a political system incapable of imposing a legal remedy for excess, whether the excess is objectively so, or merely perceived as such because it traduces some economic interests. Myself, I'm incredulous that our society is on the cusp, not only of recognizing, say, industrial livestock production as grotesque cruelty, but of doing so in precisely the manner required to legally instantiate Peter Singer's ratpigdogboy philosophy. The argument that the enforcement mechanism, being modeled after that of child protective services, would yield that result is, in my estimation, eliding the distinction between the formal process and the substantive outcome. If animals, again, are not mere meat machines, then their interests - which is to say, our obligations towards them - will be vindicated by some means or other; the results of this vindication depend upon our conception of animals, and of man, and not upon how we go about enforcing them. If standing to sue is regarded as invidious and threatening, we could simply bypass the issue altogether, proscribing industrial livestock production - which is likely the underlying issue here, other than Singerism - and augmenting the enforcement budgets of the relevant agencies. Seen in that perspective, standing to sue is merely a question of efficiency in enforcement.

Comments (92)

g) It is inherently a bad idea to grant animals standing which should belong only to persons, because in itself this involves a denial of the crucial distinction between animals and persons.

I find intriguing that Millman begins by pointing out an asymmetry between laws that protect animals and laws that protect people. This is a bad thing? There should be no such asymmetries?

And, yes, for this important reason I do consider granting animals standing to sue lunacy, not a mere "enforcement mechanism." And I don't see anywhere here where you have addressed the stupidity of Frum's "no new laws" claim.

Nor do I see anywhere that you address the "cetacean community" example given in Smith's article, nor the 9th Circuit Court's response to it, which involved their almost salivating in hopes of the day when the cetacean community would have standing to sue.

Oh, let's see what else: Ah, yes, you don't deal with the over-the-top nature of Frum's remarks about Beck--on and on about defamation and distortion when we are talking about an issue concerning interpretation and implications of a legal opinion, on which reasonable people can disagree. Nor do you seem to understand, much less address, the irony of Frum's telling everyone to be less hysterical and more careful while himself speaking in such an exaggerated way about such a disagreement. Nor do you deal with the misleading way Frum casts the history: "Gazillions of conservative lawyers and important authorities were thrilled out of their skulls about the appointment of wonderful Cass Sunstein to this incredibly important regulative position, but this _one broadcaster_, Glenn Beck, who is so _bad for conservatism_, _astoundingly_ disagreed with all these other wise and knowledgeable conservatives"--thus ignoring the _reasons_ for what Beck said, the relevant _quotations_ from Sunstein's work, and the fact that _people who also know what they are talking about_, such as Smith, were similarly concerned about Sunstein's proposal.

Maximos, I think your third-to-last sentence contains an extremely important phrase: "The results of this vindication depend on our conception of animals, and of man." If we had, as a society, a more coherent conception of animals and of man, we would actually have, as a society, the conceptual tools to resolve our current debates over sexuality, abortion, human cloning, euthanasia, and so on. The fact that we can't resolve any of these—or, in the main, even debate them without simply talking past each other—is evidence that our society's conception of man (and thus of animals) is very much in flux. The record of the courts as a place in which to conduct such debates has been mixed, at best (abortion being an example); the record of our legislatures in providing useful definitions with which to resolve such hot-button issues is downright poor. (Politicians are occupationally prone to compromise; they aren't as big on intellectual rigor and coherence. Compromise, after all, gets things done.)

Yet practically any proposal to give humans standing to sue on behalf of animals will necessarily throw that societal debate on the proper relationship between humans and animals precisely into the courts, for which the remedy is a renewed legislative activism. I like the theory, Maximos, I really do; but I just don't see it playing out that way in practice.

Personally, I'd rather have as much of the debate first as we can, and involve the legal system at as late a stage as possible. Few minds are changed under the threat of legal compulsion.

I specifically referenced the weakness of Frum's argument, and observed that, if Sunstein is fudging on the question of whether additional legislation would be required, he is being inconsistent. I consider the question of hunting distinct, not because it couldn't arise from the application of Sunstein's proposal - it clearly could, if the legal frameworks did not forestall that avenue - but because, for a variety of political reasons, a hunting ban is not going to happen. Period. But I don't spend time dilating on the question of new legislation, because I don't much care whether Sunstein is being inconsistent, or deliberately disingenuous here; I'm interested in the proposal itself, and not his manner of advocating for it.

Argument (g) sounds reasonable at first brush, but I'm not convinced that 'standing to sue' is a proxy for personhood, as opposed to a legal convenience, fiction, or practice. One could entertain the idea, as Millman has done, that third parties should have standing to sue on behalf of maltreated animals, holding in mind, and maintaining in law, a distinction between the obligations owed to persons and the interests of animals that persons are bound to respect. In other words, as with several of the other arguments, I don't believe that (g) gets us anywhere dangerous unless other philosophical presuppositions are brought into the legal process. It may be, as a matter of contingent historical fact, that those Singerite ideas will be brought into the legal system if Sunstein's proposal sees the light of day, but I don't see this as being entailed by Sunstein's idea, but as made more probable by the contingent 'balance of forces' in American society. If we judge it probable that Singerism will exploit Sunstein's idea as a 'in', that is a pragmatic reason to shelve the latter; it doesn't strike me as an argument against the thing in itself.

As for asymmetries, of course they should exist, and Millman isn't denying it. The question concerns how to define those asymmetries. The law should incentivize treating animals according to their natures, which is to say, treating a cow as a cow, meaning, roughly, that we can, of course, eat them, but we oughn't force them to eat things that they wouldn't eat when left to themselves, or dope them up with drugs so that they don't succumb to disease when kept in tight pens, hip deep in fecal matter. I don't see that this impinges upon the uniqueness of human personhood. If this is the rough framework of the law, hypothetically, then all we're left arguing is how to enforce it, not whether it equates a calf and a boy.

The cetacean community issue arises because there has been an intractable dispute between the Pentagon and the environmental community, where the former has wanted to deploy some exotic new sonar systems that emit sound waves at frequencies bound to interfere with cetacean navigation and/or communication, and the latter has wanted to protect the endangered animals. It is a dispute over the relative weighting of goods, between the preservation of a part of the natural world, and the deployment of a system which yields x% marginal gain in one small aspect of national defense. The environmentalists come up with weird terminology and exotic legal strategies precisely because they are powerless before the invocation of anything related to national security. Radicalism, actual or perceived, is often born of powerlessness, desperation, and the perception that others are defending the indefensible. If people continue to defend, say, industrial livestock operations, despite what we know about the cruelties, the incubation of new bacterial and viral strains, the environmental externalities (vast lagoons of manure, polluted watersheds), we can expect more such exotic legal gambits.

Ah, yes, you don't deal with the over-the-top nature of Frum's remarks about Beck

Because, as I've explained, I think that is is misleading for Beck to portray Sunstein's proposal as radical and threatening, when it can only become such in combination with other legal and cultural factors. Hysteria begets hysteria, I think.

I just don't see it playing out that way in practice.

This is probably the case, as I've already argued. All I'm arguing is that Sunstein's proposal, considered in itself, should stand or fall on how it would affect the efficiency of the legal process in achieving our objectives re: treatment of animals. If we cannot even test it an as hypothesis because the courts will make a hash of human dignity in the process, that's a different issue.

Rob, it is one of my great frustrations that we have many faustian bargains in the conservative universe, the one operative here being: tacitly support industrial scale animal cruelty to stave off the Singerites. We need a better politics, somehow.

I flatly disagree with you, Maximos, that these "exotic legal strategies" can be separated from metaphysics. That is, at least, what I take you to be implying--that hey, giving animals standing to sue is just a legal fiction and has nothing to do with metaphysical views about personhood. When you do talk about such views, you talk about them as somehow disconnected from the very proposal to sue on behalf of the Cetacean community or to give animals legal standing. The latter are just "strategies" or "pragmatic implementations" of anti-cruelty and animal welfare impulses, while the former are kooky views argued in the halls of academe that might or might not "take advantage of" such legal fictions. To think that is completely to misunderstand the close entanglement between law and metaphysics and between legal proposals and metaphysics. You don't think the environmentalists suing on behalf of the dolphins think dolphins are persons and Terri Schiavo isn't? Do you live in a cave?

Now, you may say that _Sunstein_ doesn't, or says he doesn't, think animals should be granted personhood, so _his_ proposal should be treated as some completely separate, pragmatic legal fiction. I disagree. Sunstein is no fool and must realize full-well that his proposal is directly connected with the personhood debate. He can talk until he is blue in the face, but granting animals the legal rights of persons is granting them the legal rights of persons, and doing so at a time when personhood theory is all the rage and "speciesism" a thought-crime has obvious implications for culture war and metaphysical issues.

Here's a parallel: Suppose that abortion were illegal as homicide against the unborn child. And suppose that liberals were agitating against this on the standard grounds that the fetus isn't a person, we don't know when real human life begins, etc. Along comes a _fellow liberal_ who says, "Well, I believe that the unborn child is a full person, but I think it would just have a lot of pragmatic benefits for us to stop prosecuting abortions as homicides. Maybe we should instead prosecute them as merely reckless endangerment of the mother or something. Take the distinctive punishment for harm to the fetus out of the equation. This would help more women to come forward and help us prosecute the abortionists. It would have a lot of practical benefits. _Of course_ the fact that this would be removing distinctive legal protection for the unborn child as a person has _nothing_ to do with _considering_ that the unborn child is not a person." I think pro-lifers should blow him a raspberry. He would be carrying water for the people who wanted to strip unborn children of the protections of personhood, however he might protest concerning his own private views. You can't come in and make a legal proposal that has _obvious_ metaphysical implications within the cultural context and then try to disavow them by statements about your own personal views.

To think that is completely to misunderstand the close entanglement between law and metaphysics and between legal proposals and metaphysics.

Does the Sunstein proposal entail, considered in itself, a fudging of a boundaries of personhood?

You can't come in and make a legal proposal that has _obvious_ metaphysical implications within the cultural context and then try to disavow them by statements about your own personal views.

Or does that proposal have metaphysical implications within the present cultural context?

I've already conceded that it may well have those implications as a contingent matter of our culture. Where I'm not persuaded is that the legal fiction, considered as a legal tactic, has those metaphysical implications. I can easily conceive of suing an agribusiness concern on the grounds that they are failing to treat their cows as cows, without thereby equating the cows with my sons as persons.

Yes, we conservatives often seem to have difficulty in hashing out the difference between prudential compromise and betrayal of principle, and the various results/repercussions of same. Some conservatives apparently have the notion that all bargains are necessarily Faustian, and that all slopes are equally steep and slippery. But in truth it would be wise for us to learn how to determine which bargains and which slopes are which.

If we judge it probable that Singerism will exploit Sunstein's idea as a 'in', that is a pragmatic reason to shelve the latter; it doesn't strike me as an argument against the thing in itself.

So it does not strike you as an inherent structural defect to the legal system which Sunstein advocates? That sounds to me like saying that we may know that a criminal can more easily break down a door with no dead bolt than one with a dead bolt, but that fact is no argument against the door with no dead bolt.

Er, no. It's an argument to the effect that, if our culture were less depraved, and less confused about what a person, Sunstein's proposal might - might - have merit. It's an attempt to treat ideas as having some autonomy from the historical circumstances of their origins, something that has happened all throughout history, in patterns of associative logic, and so forth.

I can easily conceive of suing an agribusiness concern on the grounds that they are failing to treat their cows as cows

That is dodging, Maximos, and it's unworthy of you. You know that the question here is whether the _cows_ should be granted status to sue the agribusiness. You know that. You've admitted that. You've admitted that Sunstein advocates giving animals standing to sue.

Now, let's face it: The truth is that you _kinda like_ that proposal, if it could be used against those demmed agribusinesses that you so dislike or on behalf of the dolphins against the government, and if it didn't have results that _you_ think would be going too far. (Remembering that cows suing their owners and dolphins suing the government evidently isn't going too far on your view.)

But guess what? That doesn't meant that Beck, or Smith, or I have been "misleading" about Sunstein's proposal or, to use Frum's stronger terms (and you have identified yourself with Frum in the very title of your post) have "defamed and distorted" his position. What it means is that we *disagree with Maximos and Frum* about the *evaluation* of Sunstein's proposal. See, you don't think it would be such a bad thing, such a crazy thing, for animals to have standing to sue the farmer or the government. We do. But that isn't a matter of misrepresentation.

This is a tactic that annoys me very much, and I usually find it on the left: Somebody makes a proposal, and conservatives get really upset, because they think it's a really bad proposal, and they say that in strong terms. The people who like the proposal accuse them of being "misleading" or "misrepresenting" or even "lying." But really, what it comes to is that one group thinks the proposal bad and the other group is sympathetic to it!

What this is coming to, Maximos, is something like "Sunstein's proposal can't be crazy and radical, because I don't think it's so bad, and I know I'm not crazy and radical. Therefore it's misleading to imply that it is crazy and radical." Sorry, but that's not a good argument.

unstein was arguing that this asymmetry makes enforcement of laws against animal cruelty relatively weak; normally, the civil law acts (among other things) to buttress the criminal law because in the civil law you’ve “privatized” the investigation and prosecution of the harm.

This is a false trail here. Civil suits are primarily to correct private injustice, not primarily to buttress the criminal law (which is supposed to protect against harm to the common good). It is a wholly secondary effect of the system of civil suits that they buttress criminal law. And it is to the harm of the order of justice to promote a civil suit that protects nobody's private good in order to buttress the criminal law.

Millman's argument against (d) suffices to knock down any reason for this supposed buttressing, anyway: If the legislature finds that the criminal law is insufficient to protect the common good, then they can pass new laws aimed at the common good to correct the failure, WITHOUT proposing to create a new class of private goods held in no person's hand.

However, if one believes that animals are more than mere meat machines, biological automata possessing no inherent dignity, no natures, which is to say, no teleologies of their own, save as they come into relation with human beings, then the question of how to ensure that these natures are respected inevitably arises.

What if one believes that they do have dignity inherent to their natures, but that God has created them in their natures to be subordinate to us in our rational nature? Then it will BOTH be true that they have dignity AND that their telos cannot be fully stated except in relation with human beings.

I too have been frustrated that we have no satisfactory language in which to explore the use of animals subject to the dominion of humanity while maintaining their animal dignity - that is to say, beasts for which it is perfectly right that they be used in rational manner.

I too have been frustrated that we have no satisfactory language in which to explore the use of animals subject to the dominion of humanity while maintaining their animal dignity...

We are called by God to proper stewardship of the earth and the animals it contained, as our first parent, Adam, was back in Genesis.

There is, of course, a rightly ordering of responsibilities to both God and neighbor that takes precedence; however, can people here be so depraved and narrow-mindedly literal so as to require some specific mention in the decalogue that animals are not supposed to be abused?

The cetacean community issue arises because there has been an intractable dispute between the Pentagon and the environmental community, where the former has wanted to deploy some exotic new sonar systems that emit sound waves at frequencies bound to interfere with cetacean navigation and/or communication, and the latter has wanted to protect the endangered animals. It is a dispute over the relative weighting of goods, between the preservation of a part of the natural world, and the deployment of a system which yields x% marginal gain in one small aspect of national defense. The environmentalists come up with weird terminology and exotic legal strategies precisely because they are powerless before the invocation of anything related to national security. Radicalism, actual or perceived, is often born of powerlessness, desperation, and the perception that others are defending the indefensible.

This is an open admission on Maximos's part that the attempt to get standing to sue for dolphins and whales was born of the environmentalists' frustration over the fact that they couldn't get their own way w.r.t. sonar testing under current law. Poor fellows, they were frustrated, because the present state of law didn't support the outcome they desired. So it was an attempt to change the legal set-up so they could advance their practical agenda! Granting legal status to animals is thus a route, a route already in play, for bringing about an environmentalist agenda that current law does not support. But let anyone characterize Sunstein's proposal to grant standing to sue to animals as radical, and he is misrepresenting! Indeed, Frum goes so far as to tell us all to move along, nothing to see here, nothing to worry about--*Sunstein doesn't want to change the legal set-up but merely proposes a new method for enforcing currently existing laws*. And this is a post in which Maximos "agree[s] with David Frum" about Sunstein (check the title).

Aristocles, I don't think we need mention in the decalogue. I think that it is abundantly clear from the natural moral law that we shouldn't abuse animals.

Given that, is it reasonably clear where the dividing line is between stewardship of lots and lots of cattle at one ranch, and inhumane crowding of cattle into pens? Since I don't frequent places that have cattle, and I don't know the animals in any detail, I don't feel confident of being able to say where that dividing line is. Is it clear to those who DO know the animals? What about branding steers? And what about neutering them?

It's an attempt to treat ideas as having some autonomy from the historical circumstances of their origins, something that has happened all throughout history, in patterns of associative logic, and so forth.

Well, there are many ideas which in practice are bad and incapable of being made good, but that are nevertheless not so bad sounding when examined individually. What is the point of examining ideas in isolation from the practical means of their implementation and their known relationship with other factors ranging from other laws, ideas, etc. to basic human depravity?

We know certainly that Sunstein's idea is inherently flawed in that opens up a means by which the legal profession can gain a whole new fleet of ambulances to chase, while soaking up the lion's share of the damages, and little good likely coming from it.

We are all aware of the evils carried out under slavery, treating human being as if they were things . Well, now it appears that some people are against even treating things as if they were things . But this set of people have disguised their long-range goals by colluding with another set who simply want to put a stop to abuse of things, by whatever means they can turn to the task. I don't think we need to let the first set start to play their game by using the second set, because there is adequate reason to object to the second set using this particular means to a perfectly reasonable goal. There are appropriate methods of protecting animals from abuse that don't involve imprudent attempts to grant to non-humans rights that belong to humans.

Legal fictions are always to be treated very carefully and are not infrequently regrettable. I would go so far as to say that a legal fiction to the effect that animals are person-like insofar as they have a right to sue (via a human or organizational proxy) is a very bad legal fiction in any legal system, period. I can, with effort, imagine cultural circumstances in which most of the insane possibilities opened up by this particularly bad legal fiction are not actually explored, because people in that hypothetical culture retain a good deal of inherent common sense. In that case, such suits would never or virtually never be brought in the name of animals as though they actually could sue. The legal possibility for animals to bring suit would in that case be analogous to a misguided but unenforced law left on the books. But even then it would be a very bad legal fiction.

You know that the question here is whether the _cows_ should be granted status to sue the agribusiness. You know that. You've admitted that. You've admitted that Sunstein advocates giving animals standing to sue.

This is, as you concede, a legal fiction. In any actual or hypothetical cases involving "animals bringing suit" what would actually be happening is proxies filing suit on behalf of the violated interests or goods of the animals; the entire mechanism is better understood as the creation of a free-floating public interest of sorts, of which any interested party can avail himself. All manner of mischief could result, but this is a circumstantial argument, and not the deductive one some want to make it.

Now, let's face it: The truth is that you _kinda like_ that proposal, if it could be used against those demmed agribusinesses that you so dislike or on behalf of the dolphins against the government...

Well, now it's my turn. This is quite unworthy of you, and I'm certain that you know it. I've conceded in multiple locations the present circumstantial difficulties with the implementation of the idea, which hardly counts as liking the thing, except in bizarro world, where thinking something interesting, and needing experimentation as an abstract matter, and thinking it fraught with difficulties in the real world, really mean "full speed ahead!"

As regards the dolphins and whales, the law, probably the endangered species act, enables the government to designate the animals as protected, forbidding any person or entity from engaging in activities likely to cause them harm. That is the law, and, if applied as it stands, it would preclude the deployment of those sonar systems. The underlying issue is the status of 'national security' as an all-purpose trump, one which immediately overrides or invalidates any laws circumscribing the powers sanctified by the invocation. I'm not even taking a position on the specific question of the sonar systems. I'm merely arguing that it is high silliness to expect people who disbelieve in the national security trump to roll over at the first adverse court ruling, never to explore alternative legal strategies, of whatever nature. It wouldn't be consistent with human nature for them to do so. Not that the issues are of comparable gravity, but have pro-lifers rolled over and acquiesced, merely because the Court invoked some penumbras, emanations, and sweet mysteries in order to invalidate legitimate laws? Come now. This is just not how people think.

This is a tactic that annoys me very much, and I usually find it on the left: Somebody makes a proposal, and conservatives get really upset, because they think it's a really bad proposal, and they say that in strong terms. The people who like the proposal accuse them of being "misleading" or "misrepresenting" or even "lying." But really, what it comes to is that one group thinks the proposal bad and the other group is sympathetic to it!

My turn, part two: This is a tactic that annoys me very much, and I often find it on the right: Somebody makes a proposal to rectify some enormity, like industrial-scale animal cruelty, and conservatives get really upset, because they think that the proposal has some really terrible implications, like making meat more expensive, because the costs will be factored into the price, and they denounce it in strong terms. The people who like the proposal accuse them of, well, whatever. But really, what it all comes down to is that one group thinks eliminating industrial-scale animal cruelty awesome, while the other thinks that making meat cheap by any means necessary is a profound moral issue. Folks are entitled to cheap flesh!

Prescind from the question of Sunstein's proposal. Forget about it entirely. What if we proposed to ban industrial feedlot operations, on grounds ranging from the inherent cruelty, to the incubation of disease and the environmental degradation? What if we took the threats to personhood, real or imagined, right off the table?

It wouldn't make a difference, not a whit. The opponents of the idea are not opposed to the idea simply, as though it were merely a matter of the idea's subverting our conception of human nature/dignity, but also to the non-human-dignity-questioning purposes to which it might be put. Remove the exotic legal strategy from consideration, leaving only the final cause, namely, expanding the scope of anti-cruelty provisions, and the opposition will remain utterly unappeased.

Well, it would to me. I hold no brief for agriculture operated as industry. I think they ought to have to justify their practices just as much as the public education "feedlot" industry (cramming 35 kids into one room for 8 hours a day to get them out of Mom's hair, particularly 6 year old boys forced to be still for hours on end) ought to defend itself.

As far as I am concerned, the issue really is about a notion that we should grant animals quasi-human status, with all the attendant evils of category mistakes, excessive and screwed up legal wrangling, and bad theories stemming from bad case law stemming from bad law - finally stemming from evil philosophy. And secondarily the issue is over whether we should grant still more powers over our lives to judges. Probably federal judges at that. IN the current state of affairs, to judges who are unable to distinguish true human principles, and have cut their teeth assuming that Roe is good case "law". Activist judges being given a license to legislate by stupid legislators. I think it is a BAD IDEA to allow judges to start inventing a whole new realm of rights a mile long to make the tort lawyers into a growth industry - again.

If legislators really want to rein in the military, or the agri industry, in how they treat animals, they should write forthright laws to tackle the problem directly - out in the open in the public forum where the pros and cons can be argued legitimately, and where details can be hammered out in the public forum as well, not shift the process onto courts. The courts are not made for that type of problem. As Roe shows oh so well.

What if we proposed to ban industrial feedlot operations, on grounds ranging from the inherent cruelty, to the incubation of disease and the environmental degradation?

One obvious objection is that so drastic a law would surely produce disruptions in food distribution, certainly outside of developed nations and probably within them as well.

Another objection would be the inequalities in impact across regions which would surely result from such legislation. The Midwest would be delivered a staggering blow; North Carolina and her hogs would be laid low. It is small consolation to a man who has lost his livelihood to hear that it his penury is in the service of ending the terrors of industrial food production.

Now, let us say, arguendo that we all agree with the desirability of closing down these feedlots. Suppose there is a revolution in morals which impels us to end these horrors. Still we face the daunting questions of practicality. I would say the best approach would be a federal approach. Let some states have a go at it one way and others another. In Georgia we'll expropriate the purveyors of this wickedness, and use the capital to (a) compensate the displaced workers and (b) grant every citizen his own cow. In PA ya'll can force the feedlot capitalists into a new business of local-farm consulting, a transition eased by tax incentives, grants for innovation, etc.

But even in the event of complete agreement on the moral question, I doubt I could possibly swallow so radical a scheme as outright national proscription of industrial feedlots.

In other words, even if we concede the moral questions here, we still really face quite a practical mountain to surmount.

Indeed. I can hear it now -- "But this would mean that McDonald's and Wendy's may have to eliminate their dollar menus!"

"I doubt I could possibly swallow so radical a scheme as outright national proscription of industrial feedlots.

In other words, even if we concede the moral questions here, we still really face quite a practical mountain to surmount."

This is true, but one could make the same argument re: abortion (and no, I AM NOT saying that the two things are morally equivalent!). What is called for here, as in the abortion issue, is an incrementalism combined with education/awareness-raising. I'm no fan of Lincoln, and I think that the Civil War was unnecessary, but Abe did recognize, at least initially, that slavery could not be eliminated in one fell swoop, but instead that emancipation required some measure of patience.

I don't see how the abortion comparison makes any sense at all, Rob. What is the mountain of practicality we must surmount with it?

And on the second: yes, I think that we have indeed lost that vision of human limitation, of self-discipline and even self-denial, not to mention the cognizance of categories like "posterity" to which we owe duties.

In other words, even if we concede the moral questions here, we still really face quite a practical mountain to surmount."

This is true, but one could make the same argument re: abortion

That's more or less an apples-to-oranges comparison. Outlawing abortion tomorrow would destroy probably 1% of the revenue of the medical profession, raise unemployment by a few people here and there and inconvenience many women. Outlawing many industrial practices would likely cause many bankruptcies and in a worst case scenario could cause massive upheaval throughout the entire agriculture industry.

The worst case scenario for abortion is that it causes some classes of women to become poor by having to actually raise their unwanted kids; the worst case scenario for wholesale, radical change to agriculture is famine.

Indeed. I can hear it now -- "But this would mean that McDonald's and Wendy's may have to eliminate their dollar menus!"

Your sarcasm masks a practical consideration. Industrial agriculture has given the poor the means to buy food that is much cheaper than they otherwise would have had access to.

Maximos bemoaned Faustian bargains earlier here, but industrial agriculture and its attendant cruelty to animals is a price we very well may have to pay in the short term to make food more affordable to the poor.

I would personally rather stand before God as one guilty of defending cruelty to animals in service of feeding the poor than as one guilty of impoverishing (or even starving) the poor in the service of livestock.

I didn't mean the practicality so much as I did the need for prudence and patience. (Not that there wouldn't be practical problems to deal with if there was a total abortion ban. For instance, you'd suddenly have a large increase in the number of pregnant women and newborn infants to provide for and take care of. These are, of course, good problems to have, but they still would provide practical challenges.)

"I would personally rather stand before God as one guilty of defending cruelty to animals in service of feeding the poor than as one guilty of impoverishing (or even starving) the poor in the service of livestock."

False dichotomy, as numerous agrarians and trad-cons have pointed out.

This is, as you concede, a legal fiction. In any actual or hypothetical cases involving "animals bringing suit" what would actually be happening is proxies filing suit on behalf of the violated interests or goods of the animals; the entire mechanism is better understood as the creation of a free-floating public interest of sorts, of which any interested party can avail himself.

It's a very important and very bad legal fiction. I have "conceded" nothing. In fact, I've even given you a bonus discussion of the nature and evils of legal fictions. And indeed, I have pointed out that plenty of people pushing it do not grant that it is a fiction at all. I have used the legal fiction phrase to grant Maximos and Sunstein arguendo the best situation for their defense.

The people who like the proposal accuse them of, well, whatever.

Yeah, "well, whatever." That's angering. This whole post _exists_ because one so-called "conservative" (David Frum) accused a conservative (Glenn Beck) of all manner of badness for conservatism *precisely on the grounds of reckless distortion of someone else's views*. Not of "well, whatever." And Maximos, who can scarcely ever bear to come out of blog hibernation except to defend something to the left of his colleagues here at W4, accepted the compliment of a somewhat lefty commentator as the opportunity to put up a whole post saying he _agrees with_ Frum. I point out that Frum implied that Sunstein doesn't want to grant animals standing to sue while in fact, Sunstein does, that if anyone is misrepresenting it's Frum, and so forth, and now Maximos just wants to "take all that off the table" and talk about practical ways of banning feedlot farming. And as for what he and his like on the left of the so-called "conservatives" accuse populist conservatives of, it's "well, whatever." Disgusting. Really angering. I won't take it off the table. It's why this whole discussion is here. Because someone that Frum despises had the temerity to disagree with Frum's old professor, and Frum snobbishly and, dare I say, recklessly accused him of misrepresentation, Maximos decided to echo it, and now it turns out the whole debate has nothing to do with misrepresentation but rather with *whether Sunstein's proposal is a bad one or not*.

It wouldn't make a difference, not a whit. The opponents of the idea are not opposed to the idea simply, as though it were merely a matter of the idea's subverting our conception of human nature/dignity, but also to the non-human-dignity-questioning purposes to which it might be put. Remove the exotic legal strategy from consideration, leaving only the final cause, namely, expanding the scope of anti-cruelty provisions, and the opposition will remain utterly unappeased.

My turn to point out--guess what? I object to both. _Obviously_ there are reasons to object to the radical changes you propose in the laws concerning food production. Paul has brought some up. Could not someone in Paul's position _also_ object to what Tony has objected to--granting quasi-personal legal status to animals? There isn't any inconsistency or any deception here. But it would indeed, as Tony has said, be more forthright and less subversive of the legal system to keep the matter directly in the hands of the legislature where, as it so happens, such proposals are in fact less likely to pass. No doubt for reasons that Maximos considers ignoble, but such is the nature of representative democracy rather than rule by judges.

But that is in any event a change of subject. If you, Maximos, now want to say, "I agree with Beck. Sunstein's proposal _was_ radical and _is_ objectionable, and it is so because it grants animals legal standing to sue," then you are changing your position and are going to have to put an update directly under the title of your post. Frum did not say, "Cass Sunstein does want to grant animals legal standing to sue. Beck is right about that. I disagree with Beck's strong opposition to the proposal, though, because it actually has a point in that it might enable us to stop feedlot farming, which is bad." He said _nothing remotely like that_. _That_ would have been a normal disagreement about policy among conservatives. Obviously, that is not what Frum was doing.

In fact, I've even given you a bonus discussion of the nature and evils of legal fictions.

None of which I really gainsay. But I have a fundamental objection to abstract discussions of how x is dangerous for reason y, and that is that we are always discussing potentialities, as opposed to specific, circumstantial reasons why this particular legal fiction, say, will lead, by this specific causal path, to this particular dire outcome. Now, as it happens, I've provided multiple bonus discussions of my own, to the effect that legal fictions are typically conditioned by a broader, and substantive, legal and cultural environment, and that the value of any legal fiction is determined largely by this environment. Now, in the present case, there are reasons to believe that the legal environment conditioning this fiction will be either ambiguous or deleterious; this is, however, a circumstantial argument, and not the necessitarian one that some want it to be.

And as for legal fictions, the entirety of the legal doctrine surrounding the corporation is fictive in nature; of course corporations are not persons, and according them the legal privileges of persons results in all manner of inequitable and invidious consequences, not least the ignobility of "representative democratic political processes". The legal fiction of corporate personhood effectively socializes the externalities engendered by the aggregations of wealth and power made possible by the modern corporation. Perhaps one might have argued, back in the middle of the nineteenth century, when the modern corporation was still aborning, that certain deleterious consequences were foreseeable, based on the lurid corruptions even then evident; perhaps, as well, people would have argued that, corruptions notwithstanding, we simply had to try this newfangled legal innovation isolating economic actors from the full consequences of their actions, before coming to a final judgment. Perhaps that's simply human nature. Whatever the case was, or might have been, the entire discussion was, whether anyone acknowledged it or not, circumstantial in nature. Now, for the record, I don't believe that corporations should be according legal personhood, because the legal recognition of personhood should be reserved for actual persons; for the same reason, I don't believe that animals should be accorded legal personhood. In either case, it is worth exploring degrees of protection for corporate and animal interests, falling short of personhood. I'm not convinced that, say, me having the standing to sue to prevent a farmer from abusing his cattle grants the cattle personhood, for reasons I've explained ad nauseum.

This whole post _exists_ because one so-called "conservative"...

I'm not obligated to be interested in the whole "Frum said Beck said Sunstein said" controversy. Perhaps, as I've probably already conceded somewhere, Frum is simply mistaken, or maybe even lied. I don't much care. What interests me is rather what Sunstein' proposal is at its core: if it is about granting standing to sue to animals, to be exercised by their proxies, what does that mean? As I've indicated, again , it's just not clear that it entails fudging on personhood, except circumstantially. I fail to grasp how this "I think this is probably a bad idea in the circumstances, but might be a good idea in other circumstances" amounts to an endorsement of the idea, or an anti-pro-life maneuver. It's nuanced, I'll grant that; but I fail to see the horror there.

And Maximos, who can scarcely ever bear to come out of blog hibernation except to defend something to the left of his colleagues here at W4...

As many people already know, the reasons for the infrequency of my blogging have to do with my poor health, and my preference for spending scarce reserves of personal energy on familial matters. It doesn't help that, when I show up, I'm told that I'm effectively a social parasite availing himself of the injustice that Blue Cross must insure me; or that my need for medical testing is the reason health care in America is so farked up, and that I should just wait until I'm practically terminal; or that I must believe in coercive population control, or worse, because I oppose industrial agriculture, or any number of other misrepresentations, slanders, slurs, defamations, or unwarranted inferences.

accepted the compliment of a somewhat lefty commentator as the opportunity to put up a whole post

I planned the post after reading the initial post on this subject, but wasn't about to write it out in full at 11 PM Wednesday night. I'm not permitted to have a little fun on the occasion of a rare compliment?

something to the left

Left and right retain so little consequence in the majority of the momentous questions of the age, that this criticism is well nigh meaningless in my estimation. Let's be honest; most of the conservatives who will oppose me on the matter of animal treatment won't do so because they rightly fear precipitous economic change, but because they have deemed it a conservative cause to make meat cheaper by any means necessary, because this makes possible all of the wonderful lifestyle choices that their kinds of Americans embrace - which is fundamentally a liberal argument, the general form of which is, aggregate material welfare must be maximized so that Americans have the means to actualize their lifestyle preferences. If the true cost of meat were reflected in the customer's price, that might impinge upon some of those other choices. The entire argument doesn't concern the natural law, justice, the good, or any such thing; it's about facilitating choice. And don't tell me that it's not, because this is the argument we always have at W4 whenever I critique American political economy: cheap Chinese crapola makes it possible for Americans to do all sorts of other things with the money they're not spending on American-made goods.

Obviously_ there are reasons to object to the radical changes you propose in the laws concerning food production. Paul has brought some up.

I've no objection to prudential considerations. I embrace the deliberation. I note only the irony of being chastened in a forum where many who now counsel prudence, gradualism, and the like in regards to agricultural regulation previously counseled liquidationism in regards to the financial crisis. I'm not picking and choosing when and where to counsel prudence; I'm merely discussing the ends of prudence.

"this makes possible all of the wonderful lifestyle choices that their kinds of Americans embrace - which is fundamentally a liberal argument, the general form of which is, aggregate material welfare must be maximized so that Americans have the means to actualize their lifestyle preferences."

Amen, brother. And until conservatives begin to realize that, we're all pretty much in the crapper.

"this is the argument we always have at W4 whenever I critique American political economy: cheap Chinese crapola makes it possible for Americans to do all sorts of other things with the money they're not spending on American-made goods."

American liberals and conservatives both worship what Anthony Esolen calls "the lovely dragon of choice." That their respective liturgies and emphases differ is a secondary matter: the god is the same.

I'm not obligated to be interested in the whole "Frum said Beck said Sunstein said" controversy. Perhaps, as I've probably already conceded somewhere, Frum is simply mistaken, or maybe even lied. I don't much care.

Okay, then, if you're so uninterested, don't put up a post that says that you agree with Frum on the Sunstein issue, and don't make your case have anything whatsoever to do with Beck's being "misleading" (that was your word) or with "hysteria" (another of your words), which, together with the ostensible raison d'etre of your post, associate you directly with Frum's accusation of reckless distortion against those who oppose Sunstein's proposal.

I'm not convinced that, say, me having the standing to sue to prevent a farmer from abusing his cattle grants the cattle personhood,

But it isn't giving you legal standing to sue. That would be bad as well, I maintain, because I disagree that any Joe has an interest in bringing civil suit against the farmer. But this is worse. It's giving the animal legal standing to sue. That is what we are talking about in legal terms. We should not pretend otherwise, and the fact that that is what we're talking about lies at the heart of Frum's reckless attack on the populist Beck. You say this doesn't matter and wave the phrase "legal fiction" like that means it doesn't matter. I say it does matter and should not be lost sight of or obscured by language ("enforcement mechanism," "existing laws," "me having the standing to sue") and is a pernicious legal fiction, even to the extent that we consider it a fiction, which of course many do not do who want the legal change to come about.

"In which I agree with Frum and Millman" means only that I agree that Sunstein's proposal is not the terrifying radicalism it has been portrayed as being. I think it hysterical, misleading, and reckless to state that this proposal, of itself, and independent of any particular set of circumstances, entails the denigration of human personhood; and I think this because no one has yet explained how it does this, independent of circumstances.

because I disagree that any Joe has an interest in bringing civil suit against the farmer.

Interests are conditioned by the ends one recognizes, so of course you disagree with the claimed interest. Regardless of one's view on the Sunstein proposal, any old Joe does have an interest in suing to stop the imposition of externalities, which are simply inseparable from industrial livestock production. Perhaps, then, the argument will be that any externalities are none of his business, that if the regulatory authorities say that there aren't any externalities, well, then there aren't any externalities. What will decree, reality is. Perhaps, further, the argument will be that the moral atmosphere of his society is none of his business, either; people should just accept that, while there is disagreement concerning the moral status of the factory "farm", no should ever, you know, do anything about it. Choice, baby. Just once, though, I'd like to read an explicit argument for the claim that abusing animals is a moral good, for the claim that, while there is a teleological human nature we are obligated to respect, there are no such animal natures that we are bound to respect, by way of cooperating with them, even as we use animals for our survival.

...is a pernicious legal fiction

Just how does this fiction, however fraught and impracticable it might be in present circumstances, subvert, of itself, the sanctity of human personhood? What is the mechanism, independent of circumstances, of the slippery slope?

At the very least, granting any interested party the power to sue as a proxy for the animal opens up the potential for ambulance chasers to suddenly create a whole new class of potential victims. I think Maximos is giving short thrift to the difficulties that legislators would face if they were tasked with implementing Sunstein's idea in a way that made a good effort to not open up pandora's box in its interactions with the rest of the civil code.

It's really one of those features that seems neutral until you look at the rest of the body of law and spec out how many different laws would have to be tweaked lest we have cases like a dog owner getting sued for inflicting emotional distress on their pet for locking them up in a pen for being a bad dog.

And of course there is the inherent question of who gets the damages. The government would have to impose regulations on lawyers suing on behalf of animals so that it doesn't turn into a means by which lawyers can get rich off of marginal cases with little money being spent on actually redressing the damage done to the animals.

Furthermore, if we're going to give animals a standing in court, we might as well also start mapping over some of the inalienable rights like the right of self-defense. If we're going to let them sue, why not just go ahead and let cattle who gore a rancher who is trying to take them to be slaughter be protected under self-defense statutes?

Legal standing to sue is traditionally and rationally granted to human beings only because only human beings are members of the political community and heirs of the Adamic vocation. Giving animals legal standing to sue as humans can (and allowing citizens to exercise that right as proxies) does embody a metaphysical equivalence between animals and humans.

We do not need to give animals a kind of legal standing heretofore granted solely to humans in order for us to steward them well. We do need to bind other humans from certain behaviors not in keeping with their duties, and I understand that a criminal law exists. Just enforce it.

I think Maximos is giving short thrift to the difficulties that legislators would face if they were tasked with implementing Sunstein's idea in a way that made a good effort to not open up pandora's box in its interactions with the rest of the civil code.

I don't want to give that consideration short shrift, not at all. Nonetheless, it remains that legislators themselves, in defining the law on these matters, must open a Pandora's Box of their own, inasmuch as the legislative vocation (I know, I know....) involves the drawing of distinctions, many of which will be subtle, culturally-conditioned, and every bit as potentially fraught as the legal process itself.

Furthermore, if we're going to give animals a standing in court, we might as well also start mapping over some of the inalienable rights like the right of self-defense.

I think that this is simply a non-sequitur. Speaking of my hypothetical, it does not follow from the fact that animals have interests in being treated according to their natures, which natures encompass their relationships (where applicable) to human beings, that they therefore possess, in addition, rights as over against those human beings in those rightly-ordered relationships. In fact, in my hypothetical, at least, this would be a flat contradiction.

Giving animals legal standing to sue as humans can (and allowing citizens to exercise that right as proxies) does embody a metaphysical equivalence between animals and humans.

My hypothetical scenario, which references the teleological goods of the animals themselves, explicitly rejects such a metaphysical equivalence, as a matter of definition. If, for example, the interests of the cow are defined as encompassing the provision of pasturage, a bovine diet, and the absence of hormones and antibiotics therein, where is the metaphysical leakage coming into the situation? This scenario would seem to be analogous to, say, proscribing the puppy-mill practice of confining breeder dogs to small cages, for life. The metaphysical bleed-through would seem to be predicated upon the legal proceeding, but if that legal proceeding is itself already circumscribed by a defined package of minimal goods, I'm just not seeing it.

We do need to bind other humans from certain behaviors not in keeping with their duties, and I understand that a criminal law exists. Just enforce it.

With this, I am in unreserved agreement. What I wish is a positive argument in favour of the claim that what will result in my being sent to prison if inflicted upon a dog is somehow licit, even praiseworthy (because it makes meat cheap) when inflicted upon a cow, or pig.

Giving animals legal standing to sue as humans can (and allowing citizens to exercise that right as proxies) does embody a metaphysical equivalence between animals and humans.

And Maximos says,

My hypothetical scenario, which references the teleological goods of the animals themselves, explicitly rejects such a metaphysical equivalence, as a matter of definition.

I'm with Albert. You cannot reject such a metaphysical equivalence "by definition" if the mechanism you use to try to bring about animal welfare is giving animals standing to sue. Laws and legal set-ups have meaning. Is it for me, the lowest of the low Protestants, the modern analytic philosopher, the deracinated one, to lecture you, Maximos, of all people, on nominalism? You seem to think you can create a legal set-up in which animals have standing to sue and then just declare by _fiat_ that this doesn't mean that they are being treated in law as quasi-persons. That's really quite remarkable.

If you want your move of outlawing hormones and antibiotics in cattle feed to be equivalent to regulating puppy farms, then just try to get laws passed outlawing hormones and antibiotics in cattle feed. That's how puppy farms are presumably regulated, and that's how other regulations on farmers are passed. Oh, and at the state level, of course. Try to get legislators to pass them and levy fines or whatever the normal punishment is for such regulations. Period. And if you can't get what you want that way, don't resort to circumventing the legislative branch and trying to get animals treated like persons in law just because you think it will bring about the outcome you desire. That's a very, very dangerous direction to go in one's approach to politics--a sort of end justifies the legal means.

I think it hysterical, misleading, and reckless to state that this proposal, of itself, and independent of any particular set of circumstances, entails the denigration of human personhood;

By the way, now we come to it: It is misleading, hysterical, and reckless to argue that this proposal entails the denigration of human personhood, says Maximos, because he thinks it doesn't. That's pretty remarkable. You can't disagree with Maximos about the seriously metaphysically bad nature of Sunstein's proposal and its implications for human personhood without being "hysterical, misleading, and reckless." And that's even if you represent _perfectly accurately_ what Sunstein _actually proposes_. Frum, of course, implied a _factual_ misrepresentation, but Maximos says he "agrees with" Frum even if Sunstein's critics are right in the ordinary, factual sense about what Sunstein proposes. Why? Because they disagree about _metaphysics and law_ with Sunstein, Frum, and Maximos! That's pretty amazing.

It actually casts quite a light on the technique of the left I talked about before. That's the one where the left gets all angry and calls conservatives liars and misrepresenters and so forth if the conservatives criticize them. Then, when the conservatives show that they have *absolutely accurately* represented what the leftists do advocate, the leftists don't withdraw the criticism. Why not? Well, here we have it: Because to a person who rather likes or is rather sympathetic to (much less outright advocates) a somewhat leftish proposal, it's hysterical, misleading, and recklessly misrepresenting in and of itself to say that it's a horribly bad proposal!

But, you know, that's not what most people think when they hear someone criticized for speaking "misleadingly" or for being "hysterical" or for misrepresenting. People usually think that means that the proposal itself has been misrepresented!

Well, okay then, write me down hysterical, misleading, and reckless. But to speak in blog language, I think careful and thoughtful people who have followed the whole discussion thus far will know that actually, on the Sunstein debate, the Frums of the world are pwned.

I don't want to give that consideration short shrift, not at all. Nonetheless, it remains that legislators themselves, in defining the law on these matters, must open a Pandora's Box of their own, inasmuch as the legislative vocation (I know, I know....) involves the drawing of distinctions, many of which will be subtle, culturally-conditioned, and every bit as potentially fraught as the legal process itself.

Given the expansiveness of case law and statutory law, it would be wise for legislators to simply laugh Sunstein's proposal out of their chambers. It's a situation where the proposed remedy has so many interactions with case law and statutory law, and the possible good so small compared to the potential pitfalls that it's not worth pursuing.

I think that this is simply a non-sequitur. Speaking of my hypothetical, it does not follow from the fact that animals have interests in being treated according to their natures, which natures encompass their relationships (where applicable) to human beings, that they therefore possess, in addition, rights as over against those human beings in those rightly-ordered relationships. In fact, in my hypothetical, at least, this would be a flat contradiction.

That depends on what you mean by "rightly ordered." If we were to give animals standing, I see no logical reason to protect trophy hunters from litigation by proxies acting on behalf of the hunted animals since trophy hunting is simply killing for the sake of killing. It's an obvious violation of the dignity of an animal to hunt it just for the sake of killing to make a trophy.

On a side note, I'm unaware of any specific rules which give one group the ability to sue another, but not the other way around, sovereign immunity examples notwithstanding. Wouldn't it be hilarious to see people suing wild animals for wrongful death against loved ones? I can just see it now... Family of Bob Smith versus Great White Shark...

***One more point, about the trophy hunter. It stands to reason that if we have a legal system that acknowledges the natural dignity of an animal, and all that, that it would not permit the arbitrary slaughtering of animals. So even if it doesn't have a de jure right of self-defense, if a bear killed a trophy hunter in self-defense, it follows that it would not be legal to kill the bear in retaliation since the trophy hunter's action was illegal and the bear's behavior no infringement on the rights of man.

Mike T is just pointing out that logic has something to do with all of this, not just "cultural context." A point well-taken.

Thought experiment: What I'm getting from you, Maximos, is that it is hysterical and misleading to say that giving animals standing to sue is in itself a denigration of the rights of persons. And it is so because you can declare that a "legal fiction," because there are things that are wrong to do to animals, in your view, that people are doing to animals, and because it _could in theory_ happen that such a standing to sue would be used in some culture _only_ to stop people from doing the things they shouldn't be doing anyway. So, you conclude, it's wrong to say of the idea in itself that it's crazy. You grant no meaning to the idea in itself but only in relation to its consequences.

Very well: On your view, no doubt there are wrong things that people can do and do do to rivers, trees, forests, perhaps whole geographical areas, perhaps ecosystems. Why could not a similar argument be made there? "It is not crazy and a denigration of the rights of man to grant trees standing to sue, because that would just be a legal fiction, and it is possible in theory that such a standing would be used only to stop people from doing things that they shouldn't be doing to trees anyway." So as long as humans can act wrongfully in relation to X, you can't say its crazy to give X standing to sue! Why not extend this to inanimate objects, etc.?

If, on your view, it would not be crazy to give the entire ANWR standing to sue, because that might simply be used to stop drilling there, and you think drilling shouldn't be done anyway, that is in my opinion a complete reductio of your view.

And if you don't like that consequence, then you should show why the reductio doesn't work.

My hypothetical scenario, which references the teleological goods of the animals themselves, explicitly rejects such a metaphysical equivalence, as a matter of definition. If, for example, the interests of the cow are defined as encompassing the provision of pasturage, a bovine diet, and the absence of hormones and antibiotics therein, where is the metaphysical leakage coming into the situation? This scenario would seem to be analogous to, say, proscribing the puppy-mill practice of confining breeder dogs to small cages, for life. The metaphysical bleed-through would seem to be predicated upon the legal proceeding, but if that legal proceeding is itself already circumscribed by a defined package of minimal goods, I'm just not seeing it.

How much clearer does this need to be stated?

A case cannot be pursued beyond the very boundaries that such a definition is originally set.

That is why with any legal document, terms are (indeed, must be) first defined.

Is it for me, the lowest of the low Protestants, the modern analytic philosopher, the deracinated one, to lecture you, Maximos, of all people, on nominalism?

I am of the opinion that "standing to sue" does not, of itself, adequately specify a legal mechanism or principle, but only does so in connection with other substantive considerations of which I have been speaking; so specified, the mechanism will have metaphysical implications which may be evaluated normatively or otherwise.

then just try to get laws passed

That would be my preference.

Oh, and at the state level, of course.

Inasmuch as agriculture is subject to any number of federal regulations, and structured by any number of federal subsidies and programs, inclusive of the de facto subsidies for long-distance transportation costs, it is not possible to address the issues on a state-by-state basis.

If we were to give animals standing, I see no logical reason to protect trophy hunters from litigation by proxies acting on behalf of the hunted animals since trophy hunting is simply killing for the sake of killing.

I hold no brief for trophy hunting, though the mileage of others may vary.

So even if it doesn't have a de jure right of self-defense...

I'm not certain that it follows that it would be illicit to kill the bear, inasmuch as there are other reasons, prudential in nature, for dispatching animals which have claimed human lives; such animals often develop, depending upon the nature of the encounter, the impression that human beings are threats, and, as such, are to be attacked aggressively; alternatively, animals which have taken human lives often develop a predilection for man-slaying, since human beings tend to be relatively defenseless as prey. According animals the dignity due their natures is not incompatible with defending oneself, or others, even though those others may be unknown, or even hypothetical, from the threats to human life those animals may represent.

Why not extend this to inanimate objects, etc.?

Because they are inanimate. There's a solid Aristotelian distinction in there.

What I wish is a positive argument in favour of the claim that what will result in my being sent to prison if inflicted upon a dog is somehow licit, even praiseworthy (because it makes meat cheap) when inflicted upon a cow, or pig.

I would say that there are four sequential questions in the decision tree. First, is the animal commonly found in the diet for that particular culture? Second, what degree of intelligence does the animal have? Third, is the animal on the verge of extinction from human activity? Fourth, does abuse or slaughter of the animal correlate to later adult pathological behavior?

Maximos, I gave an argument. I laid it all out. There is also a solid Aristotelian, not to mention Christian, distinction between man and animals. _You_ say that doesn't in itself stop us from giving animals standing to sue. _You're_ the one who is saying that the important distinction doesn't stop a standing to sue in and of itself, because a standing to sue is "just a legal fiction." So why should your same _arguments_ not apply to trees, rivers, etc.? I do not think you can show a principled reason. If noting an important metaphysical distinction is sufficient, then the "legal fiction" defense should also not work for giving animals a standing to sue. I can say just as well, "Because they are animals," and you should have to concede that we should never give animals legal standing to sue. If, on the other hand, noting an important metaphysical distinction is not sufficient (as your own argument for legal standing for animals implies), then you have no principled reason left for objecting to making the same argument on behalf of legal standing for plants, etc. It's just a legal fiction, after all. And it would just be another mechanism for bringing about the right result, after all. The very same arguments can be made. You have not shown why they can't. I believe you have a major reductio problem here.

With this, I am in unreserved agreement. What I wish is a positive argument in favour of the claim that what will result in my being sent to prison if inflicted upon a dog is somehow licit, even praiseworthy (because it makes meat cheap) when inflicted upon a cow, or pig.

Am I missing something here? Maybe the syntax is confusing me, but it sounds to me like Maximos denigrating the idea that treatment that is currently illegal when levied upon dogs should be currently legal when levied upon cattle. Meaning that the current practices are fundamentally inconsistent.

Maximos, are you opposed to branding cattle, which was done for centuries before industrial agriculture? If so, why? If not, why not? Isn't it a severe (if short-lived) pain in the ass for them? Are you opposed to neutering cattle? Why or why not? Isn't this a deformation of their natural lives comparable to hormones in their food? Why one and not the other? How much pasturage is the moral requirement for a cow: is it moral to confine a cow to a pasture that cannot feed her in winter, and thus force her into a situation of dependence on hay in the barn? Isn't that contrary to a natural bovine existence? Finally, are you opposed to killing cows for cheap meat? Why not? if keeping them in substandard pens is wrong, what is it about this evil that does not apply all the more to killing them for cheap food?

Say your family had a cow named Betsy ever since she was a wee calf. In fact, you watched Betsy and your daughter, Lara (supposing you had one with this name), grow up together and, indeed, they've even formed some special bond where the latter was actually personally responsible for nurturing the calf and raising it to adult.

Do you really believe that if I were to take Betsy, abuse the bejesus out of her and then, finally, slaughter her, have her as dinner steak and devour Betsy, all in front of you and your daughter; that you wouldn't have any feelings one way or another about it?

Do you really believe that if I were to take Betsy, abuse the bejesus out of her and then, finally, slaughter her, have her as dinner steak and devour Betsy, all in front of you and your daughter; that you wouldn't have any feelings one way or another about it?

With the notable exception of veal, it would be strange for any animal to be intentionally abused prior to its consumption. Putting that aside, the only relevant point is whether or not you stole Betsy or bought her.

I often have no clue what Aristocles is trying to get at. Like now. So I can only guess what point he is trying to make.

Ari, if you are intent on pointing out the difference between beasts of use and beasts who are pets simply, I am fine with there being a distinction. But if this is the crucial difference, why would Maximos make his point by differentiating by species rather than by the pet/not-pet difference? And it really doesn't help that there are beasts who are used AND treated as pets, and further that one and the same animal can be treated as pet for a while and then as a beast for use without upsetting the natural order in any basic way. (Like the famine-induced option of selling your dog to the Jones's for food, in exchange for their dog which you slaughter for food - so neither of you has to eat his own dog, but good food on the paw is utilized at need.)

If Maximos was complaining about mis-treatment of pets, as such, then he would not have bothered about pigs and cattle kept in inhumane conditions - they certainly are not pets. If not, then I fail to see how poor Betsy's treatment has the least bit to do with either Maximos' comments or my own. Certainly, as soon as you say "take Betsy, abuse the bejesus out of her" then this is highly objectionable. Naturally. But that hardly sheds any light on the questions I asked.

I would say that there are four sequential questions in the decision tree.

A decision tree of that nature is surely relevant for the consideration of differential treatment of various animal species, but the problem with which I am principally concerned is the begged question that precedes any such inquiry: it is presupposed that, if in any given culture it is common to include a certain type of animal in the general diet, it is licit to, say, immobilize those animals in holding pens for large portions of their lives; to feed them an unnatural diet, which often results in improper digestion and metabolic disorders, but which, in combination with drugs, will induce rapid weight gain; to administer a variety of drugs and hormones, both to promote abnormal rates of maturation and to preserve the animals from the diseases incubated in such conditions, to which they are more susceptible, their immune systems suppressed by the unnatural conditions and the physiological/psychological stresses of such treatment; and, if the animals are ever permitted mobility, this occurs only in a feedlot environment utterly unlike those within which, and for which, the animals evolved, which, stressing them, only creates an additional feedback loop of stress and debilitation.

Maximos, are you opposed...

All questions interesting to one degree or another, though they are red herrings in the present discussion. It wouldn't follow, for example, that if it were licit to brand cattle, that it would also be licit to impose upon them the factory feedlot regiment.

if keeping them in substandard pens is wrong, what is it about this evil that does not apply all the more to killing them for cheap food?

It is the worst sort of sophistry to argue that, because we intend to utilize an animal for food, it is of no moral consequence how the animal is treated prior to, or during, the slaughtering process. It does not follow from the fact that one aspect of the natural human-animal relationship is to be actualized, and an animal consumed, that other aspects of the natural order may be traduced prior to that point.

Maximos, I gave an argument. I laid it all out.

Insofar as we do not accept a common understanding of "standing to sue", it is difficult, if not altogether impossible, for us to pursue a fruitful disputation. A reductio predicated upon the acceptance of one definition will not work if that definition is exchanged for another. Roughly formulated, you are employing a definition of the key legal phrase that involves elevating any non-human part of nature to legal equality with human persons, thus overcoming the metaphysical distinction between humankind and all other classes of beings. I am employing a definition of the key legal phrase that involves according human beings, and parts of non-human nature, recognition commensurate with their positions in a graduated hierarchy of being, positing not only a distinction between human and non-human nature, but a distinction between various levels of being, between animate and inanimate nature; and, that one level of being (animals) may be analogous to human beings in one relevant respect does not entail that they are analogous in all respects, and thus entitled to equality.

This divergence of definitions being what it is, I could, just as easily as someone who lays stress upon the human/non-human distinction in metaphysics, invoke the metaphysical distinctions between humans and animals, on the one hand, and between animals and inanimate nature, on the other, in order to prevent a bleeding-through of the categories. This is not so much a question of invoking or not invoking metaphysical distinctions, but of which ones are invoked, how they are invoked, and in what relations.

All questions interesting to one degree or another, though they are red herrings in the present discussion. It wouldn't follow, for example, that if it were licit to brand cattle, that it would also be licit to impose upon them the factory feedlot regiment.

I actually agree with you here. I am not really trying to support industrial treatment of cattle, though that might have been the appearance. What I am suggesting is more nuanced: while we know certain things are abuse, (like direct torture of an animal to induce grave pain for hours on end), and we are pretty confident that certain other things are NOT abuse (such as branding cattle, and neutering them), what we are NOT confident of is how and why to classify various treatments as "abuse" or "not abuse" so that we can arrive a agreed conclusions time and time again without going to court each time. And the courts don't really help clarify matters either: in an environment in which courts frequently edge closer and closer to a broadcast determination that spanking a child is abuse, likewise they can be expected (if not now, then soon) to be quite willing to conclude spanking an animal is abuse in just the same way.

The problem is that the courts are not really the venue for sorting out the nuances of matters of degree, or matters where a certain amount of give and take (and compromise) would be legitimate. Every time the court decides something, they establish a precedent, and they attempt to justify their reasoning in terms that do not readily allow for give and take and compromise.

I am sick and tired of having activist judges take law into their own hands, throw out traditional practices based on their own personal preferences (doctored up to appear "reasonable"), and throw out to the public new rules that don't admit of differences of degree and are ill-advised as practical application. Especially when these new rules implementing personal preferences spring out of bad philosophy. And I think that shifting what is really a political and legislative burden to the courts would effectively be giving judges a green light to make up law in a whole new area.

To the extent that agricultural methods are unreasonable, they need to be changed. But there are better methods to that end than the proposed method. Much better methods.

I am employing a definition of the key legal phrase that involves according human beings, and parts of non-human nature, recognition commensurate with their positions in a graduated hierarchy of being, positing not only a distinction between human and non-human nature, but a distinction between various levels of being, between animate and inanimate nature; and, that one level of being (animals) may be analogous to human beings in one relevant respect

Maximos, you admit that the distinction between humans and animals is of enormous importance (at least, I assume you do), but you say that granting animals standing to sue is okay because it's a legal fiction. The very fact that you invoke the legal fiction phrase means that you see yourself how someone might think that this has implications of personhood. But you believe these can taken care of by saying that it's a legal fiction. The crux of my reductio argument is that there is no reason why the same move could not be used for the distinction between animals and trees. So it's an important distinction. Yes, I grant that. But it's no more important than the distinction between man and animals, between real persons and non-personal beings. Arguably, and in my opinion, it's less important, though my argument does not turn on that. So if the first very important distinction can be waived by the claim that we are merely using a legal fiction to bring about recognition of rightful positions in a hierarchy of being, why can't the legal fiction claim be used for a distinction that is no more important?

...it would be strange for any animal to be intentionally abused prior to its consumption.

Tell that to a Vietnamese family (which incident was accordingly reported in an article some years back) fresh off the boat, who happened to take a stray dog in off the streets and, well within a week in captivity, subjected the dog to all sorts of abuse, only to have it as dinner at week's end.

...the difference between beasts of use and beasts who are pets simply, I am fine with there being a distinction.

And what, pray tell, is that distinction, exactly?

Why would it be so awful for an culinary entrepreneur (indeed, even considered depraved) were he to put up shop selling live dogs to be served up as food in order to cater to the unique taste of those people largely eminating from the Orient who, for some reason, consider dog a fascinating delicacy?

Why would it be deemed acceptable to have a pen full of cattle which purpose was exactly for food, yet not have the very same but for dogs instead?

Are you suggesting that only those things that are arbitrarily considered pets deserve just treatment whereas other animals should not be granted the same? If so, why?

However, should you subscribe to the notion that any animal, regardless of this designation, deserves a certain measure of respect wherein none of these deserve to endure abusive treatment at the hands of man, who are in fact their very masters; just what, exactly, justifies reasoning such as that? After all, they are not human.

Why should pets (or any animal, for that matter) deserve this kind of respect?

Could it possibly be that, although not human, these possess a certain inherent dignity strictly insofar as their rightful place goes in the order of the world which God had bestowed upon us?

Maximos,
I think you can make a case against factory farming using the reasons you listed, but mainly because of possible negative consequences to humans. Those shortcuts taken to animal growth add all sorts of strange chemicals to our food supply without our consent, they ruin parts of the environment, and so on. To frame it in terms of an animal's legal right to a "natural" quality of life is a drastic step.

Btw, I don't believe Sunstein would have the ability to implement a new animal rights regime in his new job, so I should clarify that while Frum is right to warn against jumping on the Beck pitchfork bandwagon, it is mainly because Sunstein will be ineffective not because he is anywhere close to mainstream on this particular issue.

Ari,
You got me, one glaring example out of billions of animals consumed.

"I think you can make a case against factory farming using the reasons you listed, but mainly because of possible negative consequences to humans."

What about abuse of animals that has no possible negative consequences to humans? Dog- and cock-fighting, for instance? Bear baiting? Force feeding of geese to produce Fois Gras? Feeding pigs the remains of other pigs? Feeding cows corn, which their digestive systems are not designed to take? Need I go on?

No, there's got to be more to it than simply how such practices affect humans. Even such a "lowest of the low Protestants" as Francis Schaeffer realized this. See his largely ignored book "Pollution and the Death of Man" on this subject. He calls such abuse exactly what it is: bad stewardship.

The distinction between a dog held as pet and a dog held for usefulness is wholly in the intentions of the men owning it, not in the dogs. And this intentional difference is not an absolute demarcation: it admits of degree, and it is possible to have a dog be useful (sheepdogs, sled dogs, seeing eye dogs) as well as a pet, at one and the same time.

Step2, I think that we agree that a man who weekly simply beats a dog until he breaks a rib, simply because he is drunk and enjoys taking his frustration out on a living thing, is engaging in abuse. This is something we can make illegal, even though it does no harm to other humans. Although I agree that it is easier to make the case that abuse of animals should be outlawed when it does (or could) harm other humans, I don't think that this describes the entire limit of such legislation.

Rob G, while I agree with applying the notion of stewardship generally, I don't ever recall seeing that notion developed in a way that really helps here. Certainly not to the degree that Maximos hopes for. It is obvious that it is bad stewardship to treat animals in a way that harms humans. It is also pretty obvious that it is bad morally to torture animals, because this turns the human into a man who enjoys torture. What is less obvious is that stewardship precludes crowding animals into small pens in order to feed people who otherwise would go hungry. Because the notion of stewardship cannot be fully comprehended without stating the end, purpose, of the stewardship is for . Most traditional Christian sources seem to agree that the earth and its domain exists for the good of man.

Most traditional Christian sources seem to agree that the earth and its domain exists for the good of man.

An interesting potential philosophical point, which doesn't jive very well with Maximos' comment:

However, if one believes that animals are more than mere meat machines, biological automata possessing no inherent dignity, no natures, which is to say, no teleologies of their own, save as they come into relation with human beings, then the question of how to ensure that these natures are respected inevitably arises.

Even assuming that they are more than meat machines, have inherent dignity, etc., it does not stand to reason that those things mitigate or affect their subordination to the good of humanity. The main reason to worry about the ethics of certain farming practices would be their effect on the farmers. We worry about soldiers for that very reason; war is inherently ugly, not inherently immoral. However, even the "best" war can have a terrible moral cost on soldiers.

"Because the notion of stewardship cannot be fully comprehended without stating the end, purpose, of the stewardship is for . Most traditional Christian sources seem to agree that the earth and its domain exists for the good of man."

This is true, but the important thing is how that "for the good of man" plays out. Creation is good in and of itself, not simply good in its relation to man. It is, in fact, the fall of man that has warped the creation, yet it is through man, i.e., Christ, that creation is saved.

Perhaps it is the "panentheist" aspect of Eastern Christianity that makes Maximos and I somewhat sensitive to and/or more cognizant of the use and abuse of creation. I'm not really sure. But as an Orthodox I'd be very hesitant to say anything that would imply that our stewardship of creation has as its purpose only, or even primarily, those ends which pertain exclusively to us. In fact, I'd argue that it's that mentality that brought about the current ecological crisis in the first place.

For an Orthodox reflection on this issue, see Kallistos Ware's "Through the Creation to the Creator." For a Western Christian (Catholic) view, I'd recommend Matthew Scully's "Dominion." Also well worth a look is Wendell Berry's essay "Christianity and the Survival of Creation."

I am quite willing to accept a further elucidation of the situation: although the earth and its resources exist for the good of man, it is also true that man and all of creation exists for the greater glory of God. Obviously, this suggests that an individual man, and any given species, has a teleological aspect applicable on account of his own nature, but that man has a role in the whole of society, and the whole species has a role in the whole of the created order, that is not fully expressed simply by stating its nature. It is also necessary to state its relation to the rest of nature and creation. Therefore, the same works for animals as well: they certainly have natures, and these natures have a teleological aspect of their own apart from any other species; but the reason God created that species cannot be fully expressed without also giving their relation to man.

It is quite true that we ought to worry about our soldiers remaining good and humane persons. As for our farmers, I would suggest that it would make a lot more sense to me that we take severe steps to protect them from moral degradation if only we could articulate in a fully coherent manner why it is that we can pen them into a space 30 x 50, brand them, force them to mate when we decide, then sterilize them, but cannot give them growth hormones, nor give them antibiotics (except to the extent these harm other people, which I thought we were taking off the table since that issue is obvious).

The very fact that you invoke the legal fiction phrase means that you see yourself how someone might think that this has implications of personhood. But you believe these can taken care of by saying that it's a legal fiction.

We're still running into the definitional problems, because I'm emphatically not saying that the problem can be taken care of by merely invoking the mystical phrase "legal fiction", and leaving the matter at that. What I am saying is that the phrases "legal fiction" and "standing to sue" are conceptually underdetermined, and that only in conjunction with some or other philosophically-informed legal parameters do they acquire determinate substance, which we can then evaluate on any number of grounds.

So if the first very important distinction can be waived...

Again, the definitional problems, because what I do not now grant, nor have ever granted is that my conception of the matter, sketched once more above (for what feels like the 764,982,651,283rd time) waives the distinction between man and animals, between persons and non-persons; rather, it is formulated precisely to express the idea that I may have standing to sue on behalf of some hypothetical cows to ensure that they receive treatment commensurate with the minimal standard of flourishing for that species, and nothing more. The reason that this cannot bleed over into standing to sue on behalf of, say, plants, is that animals are the sorts of beings to which it is always, and in all circumstances, impermissible to do certain things. One may not, to take the really obvious case, torture them. It is incoherent to speak of torturing a tree. Cutting its limbs needlessly is perhaps an aesthetic lapse, but most of all, it is simply pointless. When we scale up the question of such pointless activity, say, to the level of felling vast swathes of forest, the potential ethical failing, and thus cause for regulation or legal action, is not the cutting of the trees, but the cutting of them in such a matter as to inflict ruination upon an ecosystem, and thereby to injure the welfare of human beings and animals. When toxic wastes are dumped into a river, the cause of action is not that water has been violated, but that human beings and animals will be sickened, and perhaps killed, by the toxins.

We're having a MacIntyre moment.

I think you can make a case against factory farming using the reasons you listed, but mainly because of possible negative consequences to humans.

I agree. The trouble, then, is that people either concede the manifest problems with these practices, but then play the 'implicit genocide' card, arguing that any retreat from torturing animals, incubating new diseases, despoiling the environment, and altering our hormonal systems will lead to mass death; or, they engage in denialism about the science. I'm not much persuaded by the former tactic, inasmuch as the consequences of my proposals for reform would basically result in us consuming less meat; this won't mean mass death, merely the consumption of less meat, which we consume to excess anyway. If consuming less meat entailed mass death, none of us would exist, inasmuch as the American diet is more or less an "innovation" of the twentieth century, and not a constant of the species. This entire debate would be more honest if opponents of reform would just admit that they like cheap meat, dammit, and believe that they're entitled on account of that desire.

Beyond that, I believe that we are obliged to provide animals with which we relate some minimal standard of flourishing, and that for philosophical and theological reasons.

What is less obvious is that stewardship precludes crowding animals into small pens in order to feed people who otherwise would go hungry.

They won't go hungry. Being hungry is not equivalent, either conceptually or in practice, with eating less meat. Moreover, a steward is one who pursues the good(s) of the things under his charge, to the end that they are preserved and enhanced for future generations. But I fear that, here as well, we are running into deep conceptual incommensurabilities.

Most traditional Christian sources seem to agree that the earth and its domain exists for the good of man.

The earth and its fullness is an expression of the Divine love; it is a gift given for the good of the entire man, body, soul, and mind, not for the gratification of his body simply, still less for the gratification of his every desire, however much he must dishonor, even blaspheme, the Divine wisdom - itself reflected in each element of the gift - in order to fulfill them.

They won't go hungry. Being hungry is not equivalent, either conceptually or in practice, with eating less meat.

Maximos, you make a good point here, one that I was aware of but had forgotten for a moment: We westerners consume at least 3 times as much meat as people did 500 years ago.

Nevertheless, that is not a simple refutation of the point. America and its consumption of meat showed the world that natural growth for humans, when properly fed, includes a norm for males reaching to roughly 6 feet (on the average, of course). 500 years ago the "normal" height was several inches below 6 feet. Immigrant families have been astounded time after time of children growing up 5 inches taller than their parents time after time. This pretty clearly suggests that the typical diet of 500 years ago (and 100 years ago in many places, and now in 3rd world countries) was lacking in what they needed to meet their full potential. Can humans get by with meat once or twice a week? Sure. Can they thrive on that? Not so clear. Pretty unlikely, actually.

The earth and its fullness is an expression of the Divine love; it is a gift given for the good of the entire man, body, soul, and mind, not for the gratification of his body simply,

I agree completely. That is why I reject simplistic versions of thinking the earth exists for the sake of man simply as a physical toy. To put in one way: The Garden of Eden was for man, but gardens do not satisfy simply the material needs of man. There is more to it than that.

America and its consumption of meat showed the world that natural growth for humans, when properly fed, includes a norm for males reaching to roughly 6 feet (on the average, of course).

Yes, this much is true, and fairly widely known. But it would be a simple fallacy to identify human flourishing with the singular dimension of physical height, or maximal strength (relative to one's body type); and it is simply not the case that a reduction in the consumption of meats would necessarily impair other dimensions of human flourishing. Per capita consumption of meat is lower in many Asian countries than in the United States, and yet median IQ in several of those nations is higher than in the US: it is not as though, by foregoing meat, we are going to forgo the more critical dimensions of human flourishing; we can easily reduce our consumption of meat without diminishing our intellectual capacities, for example.

What has happened with the consumption of meat in Western societies generally, and the United States particularly, is a visceral microcosm of what has happened with Western modernity as an historical phenomenon; we have valorized the amelioration of man's physical estate - and that along a very presentist arc - and privileged the physical dimensions of human flourishing. Moreover, to add a complicating factor, we have privileged the perceived dimensions of physical flourishing, inasmuch as medical literature indicates strong correlations, probably rising to causation in many instances, between the American diet and incidences of disease, from heart disease to cancer.

The upshot is that there are always trade-offs; there is no maximal optimization, such that all dimensions of flourishing are maxed out, as in some online role-playing game, in which your character might be able to achieve tens in every measured quality. And we, with our present-oriented mindsets, have chosen short-term physical goods over long-term ones, short-term cultural goods over the long-term environmental ones, and short-term preference satisfactions over long-term, teleological ethical goods.

What about abuse of animals that has no possible negative consequences to humans? Dog- and cock-fighting, for instance?

Animal cruelty that can be described as duels to the death are already illegal, albeit very recently for cockfighting, and I haven’t suggested overturning those laws or any other laws either. Unpacking it a bit more, it is interesting that society permits human boxers to beat each other to a pulp, and allows bets on the outcome, with a number of restrictions on how much damage can be inflicted. The main problem then in animal fights appears to be the brutal tooth and claw fight which is often to the death. Although there is undeniably a concern for the animal’s welfare in outlawing these blood sports, there is also a concern in dog fighting especially of both gang related activity and the spectator’s desensitization to violence. The latter reason being one of my previously mentioned considerations for providing legal protection to animals.

This entire debate would be more honest if opponents of reform would just admit that they like cheap meat, dammit, and believe that they're entitled on account of that desire.

Maybe most opponents do only want cheap meat. I have no problem paying more for meat, but I do have a problem doing so under the guise that a farm animal has legal rights to a flourishing quality of life.
Beyond that, I believe that we are obliged to provide animals with which we relate some minimal standard of flourishing, and that for philosophical and theological reasons.

I believe that is our core area of disagreement, since that relation in my view is merely a basic transaction in the specific case of farm animals. I find it very difficult to empathize with the plight of farm animals suffering from undue stress and indigestion.

So you're saying, Maximos, that it's okay to give animals standing to sue because they can be violated, whereas trees cannot be? And "being able to be violated" is a sine qua non for its being something other than crazy to be given standing to sue? At least you admit then that the issue is a metaphysical one and not merely a matter of infinitely morph-able legal meaning given cultural context. In that case "legal fiction" isn't really bearing all that much weight in your argument. Your argument, rather, is that it would always in all contexts be wrong and crazy to give trees standing to sue but wouldn't be for animals, _not_ because animal standing to sue is a legal fiction but because standing to sue can at least in theory be a legal state appropriate to any entity that can be violated by acts that are always wrong (such as torture). That, I think, is the crux of our disagreement.

I'm intrigued by your response to Tony's point about growth stunting and protein consumption. I get this rather eerie feeling that you are saying it would be okay deliberately to feed your children so little meat that they do not grow to their full, normal, potential height, even though you could afford the meat, because their IQ's could still be normal, IQ is more central to humanity than height, meat is bad for them physically in other ways, and it's better for the environment, animals, etc., if people eat less meat. Something's got to be wrong here. I refuse to believe that you have to stunt kids' growth by lowered meat consumption in order to avoid other physical health problems for them.

Moreover, to add a complicating factor, we have privileged the perceived dimensions of physical flourishing, inasmuch as medical literature indicates strong correlations, probably rising to causation in many instances, between the American diet and incidences of disease, from heart disease to cancer.

I agree with Lydia's take on this notion of flourishing: a theory that physical flourishing is somehow opposed to mental flourishing is very, very strange. Almost like the body and soul are in opposition.

I am not aware of medical conclusions that it is the amount of protein in the western diet that is causing problems. (Most of the problems stem from other things that come with the protein.) While it is true that there are many diseases that are more common in western diets than in others, the overall notion that the cause is to be attributed to that whereby the person attains his naturally disposed height and musculature is also, medically, strange.

We would generally like to believe that the best diet would BOTH have enough protein to foster complete expression of the person's natural height and mass, AND be free of harmful side effects on other systems of the body. But whether we have YET managed a common diet that actually fulfills the second goal, it is philosophically concerning to suggest that it is either undesirable or impossible to achieve both goals. Without direct proof that achieving one must interfere with achieving the other, I reject such a theory, and hold instead that we should hope for a world that has sufficient protein for everyone in it to be fully healthy in all aspects of their being.

At least you admit then that the issue is a metaphysical one and not merely a matter of infinitely morph-able legal meaning given cultural context.

This has been a misunderstanding of my argument, which is that 'standing to sue' has no meaning at all until it is informed, given shape by, some metaphysical conception.

legal fiction...

It is not so much that 'standing to sue' is a legal state appropriate to any entity that can be violated, but that 'standing to sue' is a term of art meaning that I, for example, can compel someone at law to discharge his obligations towards the creatures. That is, the substantial matter is that someone has an obligation and can be compelled to fulfill it, not because the entity in question itself possesses some 'standing', which would seem to imply an ability to cognize wrongs perpetrated against it, but because it is a part of the human vocation to have these obligations.

I get this rather eerie...

What? From whence could such strange conclusion be conjured? No, my argument, apparently veiled in obscurity, was that it is bizarre in extremis to argue as follows:

1) People will not attain to the full physical stature for which they are genetically coded unless they consume x quantity of protein.
2) This protein will, more likely that not, have to be derived from animal sources.
3) Practicing humane forms of animal husbandry will not yield the requisite quantities of protein for more than a select percentage of the population to achieve (1).
4) Underpants gnomes!!]
5) Therefore, it is morally licit, even obligatory, to treat animals inhumanely, as inhumanely as required, to maximize the production of meat, so that the maximal number of people possible can achieve (1).

(4) is referred to as an 'underpants gnome' premise because it has been nowhere established that it is in any sense obligatory to maximize this one, reductionistic measure of physical flourishing, or that it possesses such import (for whatever imagined reason) that it therefore becomes licit to despoil the environment and abuse animals in order to facilitate it.

I am not aware of medical conclusions that it is the amount of protein in the western diet that is causing problems.

Yes, but now we're at the stage of swapping terms in and out of the argument in order to make it sound more or less favourable. I originally used the term 'meat', by which is meant the flesh of the various livestock mammals, and not the term 'protein'; and in that case, particularly where the redder meats are concerned, there is an abundance of medical evidence that the quantities consumed in the average American diet are unhealthful.

it is philosophically concerning to suggest that it is either undesirable or impossible to achieve both goals.

It is probably impossible, given both the finitude of resources and the physical imperfections of our nature. It is therefore undesirable, not to endeavour to realize some measurable improvements, but to obliterate other goods, or to disregard normative obligations, in order to do so.

Almost like the body and soul are in opposition.

Unless the physical health of the body can be reduced to the maximal expression of individual height, which was the genesis of this sub-thread, then there is no opposition at all. The health of the body is not to be equated with the maximization of height, and one can be in optimal health without so maximizing height.

'standing to sue' has no meaning at all until it is informed, given shape by, some metaphysical conception.

without returning to being subject to a reductio. For if that were true, then "standing to sue" could be defined by fiat in such a way, given shape in some legal community in such a way, that it could be non-crazy to grant it to rivers. But you didn't want to say that. So evidently "standing to sue" does have some meaning that can't just be infinitely morphed into whatever you want it to mean to bring about the outcome desired.

Likewise with this:

It is not so much that 'standing to sue' is a legal state appropriate to any entity that can be violated, but that 'standing to sue' is a term of art meaning that I, for example, can compel someone at law to discharge his obligations towards the creatures. That is, the substantial matter is that someone has an obligation and can be compelled to fulfill it, not because the entity in question itself possesses some 'standing', which would seem to imply an ability to cognize wrongs perpetrated against it, but because it is a part of the human vocation to have these obligations.

If "standing to sue" is merely a term of art that can be defined as having no substance beyond that someone has an obligation and can be compelled to fulfill it, there is no principled reason not to apply this same maneuver to parts of the physical world which cannot be violated.

You would have done better to stick to your "violation" principle, even though that would have required you to abandon your contention that standing to sue has no content in itself and can be given meaning by fiat.

1) People will not attain to the full physical stature for which they are genetically coded unless they consume x quantity of protein.

Why don't you just say "attain to full health". I will contend that full health cannot be located at a place where the person is physically stunted.

2) This protein will, more likely that not, have to be derived from animal sources.

Yes, but now we're at the stage of swapping terms in and out of the argument in order to make it sound more or less favourable. I originally used the term 'meat', by which is meant the flesh of the various livestock mammals,

I am open to other sources than red meat. Like fish for example - supposedly we all need to eat more fish. But of course, this is no better: we are already fishing out to the point of permanent depletion many of the available fishing areas of the oceans, and fish farming is really no better than the cattle pens you want to replace. So now what, vats of protein-producing yeast? C'mon. Be serious.

It is probably impossible, given both the finitude of resources and the physical imperfections of our nature.

That's a cop-out. It is probably impossible, given both finitude of resources and imperfect understanding of nature, to ever feed all of the people in the world. People will starve. "The poor you will always have with you." Nevertheless, it is morally insufficient to simply shrug to the poor going hungry, and not at least hope for changes that might feed them. If you will read my post, you will find I used the verb "hope", precisely because I recognized the near impossibility of achieving it, but the moral requirement to be open to making it happen, or come closer than we are at a given time.

The health of the body is not to be equated with the maximization of height, and one can be in optimal health without so maximizing height.

No, that is ridiculous: one cannot be in optimal health without providing the body with it all that it seeks to use, including all that it seeks to use to grow into its full optimal size. If you short the body of its needs during growth, you are not in optimal health in that time. It's not that height is "equated with" optimal health, it is that the conditions that achieve one will automatically provide the other.

Unless the physical health of the body can be reduced to the maximal expression of individual height, which was the genesis of this sub-thread, then there is no opposition at all.

I thought my premise was evident, but apparently I was making an unwarranted assumption. During the growth period, the body will seek to use resources for growth insofar as its nature is disposed towards gaining height (and muscle mass, and bone mass, etc). Any lesser resources will result in either shorter height or other diminishment of the body. (If (with lesser resources) the body does achieve its full height, it could only do so by robbing other functions of their needed resources.) Therefore, the conditions in which the body has lesser resources than the amount it needs to achieve the height towards which it is disposed must be conditions in which the body is trading off one set of functions for others, and this CANNOT be optimal health. I thought this was darn near self evident, but somehow it is not.

This entire sub-thread stems from your comment Being hungry is not equivalent, either conceptually or in practice, with eating less meat.

OK, but not feeling hungry is not equivalent to having all the nutrition the body seeks for full health, either.

Maximos, I really don't get your drift. I am not wedded to industrial farming. I just want to clarify that there is a trade-off to making it illegal. You seem to be saying that (in addition to morality requiring it whether there is a physical trade-off or not), that there really isn't any trade-off, we won't be harmed in our production of food. Do you absolutely think that getting rid of the feedlots, other farming that is now available will produce the same amounts of food? I don't. Which doesn't make it morally right or wrong. It just sounds like you are trying to "prove" that doing the moral thing in not treating cattle like trees won't damage the food production in the country. That's just plain silly. Maybe eventually we could figure out a work-around, over time, but that would certainly involve using more land, more energy, more people, etc., and in the meantime it would certainly damage our ability to feed people.

Accepting that this is a moral obligation would be ever so much easier if one could see a coherent argument which makes it clear why it is moral to brand cattle, to enclose a bull in a modest pasture instead of leaving it free to roam, never allowing it to develop its aggressive capacities by fighting off predators, forcing it to mate when we want it to, and making it sterile when it suits us, but it is NOT moral to feed it growth hormones or antibiotics. And what establishes the criterion of minimal acceptable pasturage?

If we were required to do something intrinsically immoral in order not to be undernourished, then we and our children would have to be undernourished. I think part of the problem here is that Maximos is inclined to think that feeding cattle what they are presently fed in industrial farming is intrinsically immoral but doesn't want to say that he is willing for his children to be undernourished in order to avoid taking advantage of intrinsically immoral actions. If you really think industrial farming is intrinsically immoral, Maximos, just bite the bullet: Say, "I'm not going to feed my children anything but free-range chicken, and if that means that they are undernourished, so be it." If we were talking about cannibalism, I would be willing to say that. But that's because I really do think cannibalism is intrinsically immoral.

By the way, I'm very short, so I'm not arguing that being short is being unhealthy. But I had very good nutrition during my growth years. I'm short because of a minor genetic anomaly.

No, this merely takes us back to the specificity of the metaphysical doctrines informing any given set of legal practices; some would be subject to a reductio, while others would not be so subject.

So evidently "standing to sue" does have some meaning

Yes, as provided by any given metaphysical framework. It is not the bare definitional act of predicating 'standing to sue' upon a metaphysical framework which renders 'standing to sue' subject to a reductio, but the substance of a particular metaphysical framework.

there is no principled reason not to apply

As implied by my previous discussion of the differences between animate and inanimate nature, the reason not to apply this maneuver to inviolable parts of nature is that, while the obligations towards animate nature are in part negative, and in part positive, the obligations in regards to inanimate nature are principally negative, and ultimately related to the goods of human beings and animals. That is, the 'obligations' spoken of are not merely obligations in the abstract, the generic concept of 'obligation' that can be applied in any old theoretical context one desires, but specified obligations, as given by metaphysically-informed law, which determines where there is 'standing' and where there is not.

You would have done better to stick to your "violation" principle

The violation principle is, in the main, the content that is given to 'standing to sue".

Nevertheless, it is morally insufficient to simply shrug to the poor going hungry, and not at least hope for changes that might feed them.

I've never once rhetorically shrugged my shoulders, as my point with regard to this subthread is simply that it does not make philosophical sense to define optimal health independently of the circumstances, principally material, within which health is sought. Defining health in this matter is a frankly noumenal exercise that holds little interest for me, inasmuch as I cannot perceive the imperative of defining health as the full potentiation of all human faculties or metrics in a world in which this is simply impossible. There are always trade-offs, if not for particular individuals, then for societies. Or, if that is perhaps too pointed a condemnation, I should add the qualification that such a definition, if we are to have it - for it could easily be argued that we require such ideal constructs as heuristics and/or goals - should never be the exclusive determinant of our conduct; physical health is not, after all, the summum bonum.

If you will read my post, you will find I used the verb "hope", precisely because I recognized the near impossibility of achieving it, but the moral requirement to be open to making it happen, or come closer than we are at a given time.

I don't disagree with this sentiment.

You seem to be saying that (in addition to morality requiring it whether there is a physical trade-off or not), that there really isn't any trade-off, we won't be harmed in our production of food.

No. I've nowhere implied that I believe that there obtains no trade-off, at least in terms of sheer quantities; there would be a trade-off, which is the reason everyone is so resistant to agricultural reform (or, at least, this is one of the reasons), and this is one of the reasons I've advocated, in this very thread, gradualism in the implementation of reform. Were I convinced that there were no trade-offs, I'd not be concerned that any reforms be established progressively.

It just sounds like you are trying to "prove" that doing the moral thing in not treating cattle like trees won't damage the food production in the country. That's just plain silly.

No, I'm merely arguing that a reduction in the consumption of meat, on account of lower gross production totals, and the resultant higher prices, would not result in substantially negative health consequences, consequences so grave that we have no ethical choice but to perpetuate the system as it exists. If the most prominent effect of this dietary alteration were a reduction in average height, it would be no grave matter at all.

As for the concluding paragraph of your post, perhaps I'll address it, briefly, at a later hour, should I have the leisure; presently, I must be getting to family dinner.

there would be a trade-off, which is the reason everyone is so resistant to agricultural reform (or, at least, this is one of the reasons), and this is one of the reasons I've advocated, in this very thread, gradualism in the implementation of reform.

Ah, now I get it. Sorry for the contratemps. So what you are saying is that when we have gone through the agricultural modifications and reforms morally necessary, and stop using feedlot methods, we will be able to produce the amount of food that we actually need to be completely healthy.

To which I say: MAYBE. That is, it is a hypothetical possibility, I see that. But it is a hypothesis wholly unsupported by the evidence. So far as we have evidence for, until the methods of the mid-1800's and thereafter, more than half the population DID have less than optimal amounts of protein. And it is precisely as we moved toward more industrial methods, we saw diets reaching closer to full optimal amounts of protein.

And the world population is much higher now than 200 years ago, so any reversion to more land-intensive methods would require destroying still more forests to turn agricultural use. Is this part of the trade-off equation?

'standing to sue' has no meaning at all until it is informed, given shape by, some metaphysical conception.

without returning to being subject to a reductio. For if that were true, then "standing to sue" could be defined by fiat in such a way, given shape in some legal community in such a way, that it could be non-crazy to grant it to rivers. But you didn't want to say that. So evidently "standing to sue" does have some meaning that can't just be infinitely morphed into whatever you want it to mean to bring about the outcome desired.

'Standing to sue' does indeed have a concrete, independent meaning unless you want to say that the entire English language is nothing more than a set of sounds that have 'no meaning until informed, given shape by, some metaphysical conception.' Standing, in this context, means authority derived from one's position in the social context. The verb 'to sue' means to bring a lawsuit. Ergo, while the specific implementation of legal standing may be a "legal fiction," the phrase "standing to sue" has a concrete, meaningful definition to anyone who speaks English. Language may not itself be a transcendental truth embedded into the fabric of the universe, but in the context of speakers of a language, a phrase has a basic, shared meaning which is close enough to being objective at least in these of being "good enough for government work."

The attacks on standing as a legal fiction, as though legal fictions are ipso facto disposable needs to be addressed. It is true that legal standing is a legal fiction. So are your rights, even rights that you may claim that God has given you. All legal matters are "legal fictions" created by a higher authority and imposed on those over whom the authority has jurisdiction. Even the process by which God will judge you in the afterlife is a "legal fiction" which God created as an expression of His authority, informed by His nature, to address His specific problem of judging sinners.

The current requirements for standing are indeed a legal fiction, but they are a much better one than the ones being proposed by Sunstein. They create fewer potential opportunities for the law of unintended consequences to punish society. It is insufficient to judge the standing requirements and proposed changes as independent ideas when the wisdom of choosing them is based primarily on their harmony with the rest of the legal code, their propensity for inflicting unforeseen harm on people and property and the difficulty of achieving optimal integration with the rest of the body of law.

Splitting off an issue like standing and judging it as an independent idea without the context of the law is just dumb. You can't come even close to judging its merits without taking context into account.

Tony, the burden of my arguments with respect to agricultural and animal "husbandry" methodologies is that our present practices, and the path dependencies they instantiate, are unsustainable, for reasons of resource finitude, and the remainder of the externalities - various forms of pollution, drug-resistant diseases, and so forth. I have hope that some means of both reconciling ourselves to these material realities and preserving our health and well-being may be discovered, as part of a gradualistic process of reform, experimentation, and, yes, moral enlightenment.

Mike T,

Your discussion of the linguistic significance of "standing" is perfectly correct, which is precisely why, as a matter of metaphysics, granting animals standing to sue cannot be other than a legal fiction, inasmuch as animals are incapable either of cognizing their places in the social order, or of comprehending violations of those places in the social order. 'Standing to sue' in this context, therefore, cannot mean anything other, rationally speaking, than granting to third parties standing to bring a cause of action against someone failing to fulfill his obligations in respect of those animals. It is those third parties who have standing. Much mischief can be generated by the pretense that this standing means something more, and advocates of various proposals along these lines have typically been ambiguous concerning their actual claims, with others being quite forthright in avowing more radical ambitions. Their ideological posture is merely a particular manifestation of the generic problem of ideology, namely, predicating real-world policies upon fantasy structures. In the actual world, there are many far superior approaches to what problems and injustices obtain in this area of human endeavour; what I have attempted to argue is simply that, in a different set of cultural circumstances, one in which people embraced a different - and superior - set of metaphysical convictions, this proposal would not be the terror that it is in our world.

In the actual world, there are many far superior approaches to what problems and injustices obtain in this area of human endeavour; what I have attempted to argue is simply that, in a different set of cultural circumstances, one in which people embraced a different - and superior - set of metaphysical convictions, this proposal would not be the terror that it is in our world.

True, to a large extent, but it is still necessary for legislators to do their level best to predict the unforeseen actions of idiots and the ignorant, well-intentioned and defeat them in advance. Legislators are, after all, the architects or senior engineers, of the legal world and that is the duty that comes with their office.

I disagree with you that in a sinful world, irrespective of metaphysical convictions, it would be something other than bad and dangerous on the grounds that it would open up a lot of new opportunities for well-meaning dogooders to harass the public, to say nothing of allowing crooks to enrich themselves by posing as representatives of the animal world and pocketing most of the money that should be going to help the animals. That is already a common practice of lawyers with human injury cases, and animals lack the rights and sentience to not only know that they are being deprived of their due, but to seek out better redress of their grievances.

In short, I think the only viable solution that is inherently the least corruptible (which is not saying much) is the administrative approach wherein humans play the role of punitive guardian angel punishing other humans who break criminal and administrative laws against animal cruelty. Since agents of the state are salaried employees, they have no hope of a windfall coming their way, and that alone is a serious point in their favor.

You still haven't answered my question: why are dogs, or any animal for that matter, supposed to be respected in that they shouldn't at all be abused?

You've only thus far insisted that they shouldn't be abused, but have yet to provide a compelling reason to justify such a statement.

If animals, including dogs, simply exist to serve man's needs as food, a means for transportation, or for any other utilitarian end they're able to fulfill; then why would physically mistreating them (especially if their final end is to become tonight's dinner) even be considered cruel?

By the way, were you actually implying that you wouldn't at all mind a culinary facility that housed live dogs only to be served up as a gourmet delicacy?

If animals, including dogs, simply exist to serve man's needs as food, a means for transportation, or for any other utilitarian end they're able to fulfill; then why would physically mistreating them (especially if their final end is to become tonight's dinner) even be considered cruel?

The two points are not incompatible. Even if an animal's raison d'etre is to be food for any human that wishes to eat it, it does not logically follow that any means by which that human chooses to kill and eat it is as good as the next. A righteous man would choose to minimize the pain of the animal in recognition of the fact that it is a living, complex life form created by God. He would choose to shoot the cow in the head to kill it quickly. A wicked man might just as easily take delight in taking a machete to the cow and chopping it into pieces while still alive.

Cruelty is defined by its wantonness. It is cruel to crucify a murderer because it is a means of killing them that delights in the pain and prolongs it; a firing squad is quick and straight to the point, if brutal in the split second it takes to carry out. Thus, a competently executed firing squad is inherently not cruel to inflict on a murderer.

A righteous man would choose to minimize the pain of the animal in recognition of the fact that it is a living, complex life form created by God.

So are certain insects and, yet, we wouldn't actually give them the same consideration as we do with animals. Why?

Cruelty is defined by its wantonness.

If I took a grasshopper from the schoolyard so that I could have students dissect it in a high-school science classroom, would that be considered 'cruel'?

Yet, if I were to take a stray dog in order to do same, not only would it be considered cruel, but all manner of animal rights activists and what not would be blaring through the hallways, to the very doors of said classroom not only to protest the act but also to demand prosecution!

So are certain insects and, yet, we wouldn't actually give them the same consideration as we do with animals. Why?

Insects cause a whole host of problems for man that no other type of animal does, at least on the same scale: disease, poisoning, destruction of property, loss of crops, among other things. Man's relationship to them is often hostile. Therefore man can be forgiven for taking the stance that a dead bug is a good bug for most species.

If I took a grasshopper from the schoolyard so that I could have students dissect it in a high-school science classroom, would that be considered 'cruel'?

We don't dissect living animals now, so yes, it would be.

Yet, if I were to take a stray dog in order to do same, not only would it be considered cruel, but all manner of animal rights activists and what not would be blaring through the hallways, to the very doors of said classroom not only to protest the act but also to demand prosecution!

Their behavior is hypocritical, but that does not change the fact that in principle, animals should be treated that way.

As for destruction of property and loss of crops, how much American history have you studied exactly where you seem to be unaware of examples out West wherein certain animals caused notable instances of such havoc?

You responded to my question concerning the dissection of grasshoppers:

We don't dissect living animals now, so yes, it would be.

So you're actually arguing that dissecting grasshoppers is cruel?

Get real, Mike T.

...that does not change the fact that in principle, animals should be treated that way.

Why shouldn't animals be treated that way?

Would you consider experiments conducted daily on dogs and cats as part of MS research cruel?

Ari, I don't wish to descend into a pit that is unnecessary for Maximos's discussion. Do you content that any treatment of animals, no matter how brutal, cannot be called immoral merely on account of its brutality? That is, are you defending the position that is opposite to the position you have asked me to support, or not?

I don't have settled opinions on the why's and wherefores of what constitutes abuse of animals. Since I don't have settled opinions, I am willing to (temporarily, and with caution) go along with the societal notions of acceptable treatment of animals EXCEPT where I can see clear irrationality. At the moment, society thinks it is unacceptable to intentionally inflict pain on higher animals without a specific societal gain in mind to come out of the treatment - i.e. to inflict pain for the sake of pain itself. I can go along with that for the moment. I think Maximos agrees that this is abusive, and is morally proscibed. That there is some level of treatment that is surely out of bounds is all that is necessary for at least the first step of the stance Maximos is arguing for. And I don't disagree with that.

That does not mean I think that this actually defines abuse. It is, for one thing, obviously incomplete. If someone can give a superior account of abuse, I will welcome it.

Do you content that any treatment of animals, no matter how brutal, cannot be called immoral merely on account of its brutality?

In the subsequent paragraph, you deliberately made mention of the following:

[S]ociety thinks it is unacceptable to intentionally inflict pain on higher animals without a specific societal gain in mind to come out of the treatment - i.e. to inflict pain for the sake of pain itself. I can go along with that for the moment.

Notice, it applies to "higher animals". What I've been trying to impress on you all along is why "higher animals" yet not anything besides?

To inflict similar harsh treatment to lesser living creations such as insects and what not could ever hardly be considered immoral merely on account of any action that would otherwise be considered brutal were it a higher animal.

There must be a reason why when it comes to those of the latter, it is considered so -- no?

What I've been trying to impress on you all along is why "higher animals" yet not anything besides?

I don't know why. I said that. I am just reporting what society deems abusive: giving higher animals pain for no particularly good reason. I am not responsible for this situation, nor do I think it is a complete expression of stewardship of animals.

I can come up with theories to explain it, but they would just be theories. How do you explain it?

I will suggest that society thinks giving pain to insects for no reason is at least a little odd, questionable, somewhat suggestive of a not quite right psyche. Does that match your understanding of how society views it? I am just trying for accurate description here.

I am more than willing to go beyond the societal range of vision on this, when I see an account of stewardship that is coherent and actually clarifies the issue, that actually explains what needs to be explained about the matter. That is why I keep asking for such an account.

"when I see an account of stewardship that is coherent and actually clarifies the issue"

I'd take a look at Matthew Scully's book "Dominion," which I mentioned above. His arguments deal mainly with the treatment of animals, but they can be extended to other areas of creation stewardship as well, I'd say.

As for destruction of property and loss of crops, how much American history have you studied exactly where you seem to be unaware of examples out West wherein certain animals caused notable instances of such havoc?

The plague was not caused by rats, but by the fleas on them. The rats died left and right along with the humans because they too were susceptible to the plague, so you can't use that example in your defense.

Rodents are probably the only point I would have to concede to you on this. Aside from that, all other major species can be controlled without wholesale killing or harm.

So you're actually arguing that dissecting grasshoppers is cruel?

Get real, Mike T.

I am arguing that it would be unnecessarily brutal to a grasshopper to dissect it while it is alive. Dude, you need to read before going into rebuttal mode because I made that point crystal clear.

Why shouldn't animals be treated that way?

Would you consider experiments conducted daily on dogs and cats as part of MS research cruel?

I forgot the "not" in that statement. I had hoped that you would have figured that out in the context of the rest of my comment...

I have severe moral reservations about animal testing, but seeing as how we cannot test on humans we are stuck with an inherently faustian bargain: risk horribly deforming and killing humans while ironing out bugs in our medicine, or not test on animals.

As long as the operation is for a scientifically valuable end, the suffering is minimized by the team, and the testing can only be done on a live subject, I think it is morally acceptable, if undesirable. Animals are subordinate to us, and I don't see much of a difference between using them in scientific experiments and eating them, provided that the same level of care is placed into minimizing the suffering and degradation that they suffer.

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